Fitzsimmons v. Chapman.

In Adm'r of Townsend v. Lorain Bank of Elyria, 2 Ohio St. 352, a notice simply describ ing the note, and stating that it was protested for non-payment, and that the holder looked to the indorser for payment, was held insufficient. But in this case the notice was dated two days before maturity of the note, and stated that it was "this day" protested, and the decision was put on this ground. Therefore, the long examination of authorities and approval of the contrary doctrine to that above declared, the principal case is entirely obiter.

In Boehme v. Carr, 3 Md. 202, the notice stated that the note had not been paid, and the holder looked to the indorser for payment. Held, insufficient, because it did "not of necessity create the inference of demand on and refusal by the maker, which in all cases are facts necessary to be communicated to the indorser, in some form or another, in the notice of protest." See, also, Graham v. Sangston, 1 id. 59; Hunter v. Van Bomhorst, id. 504. Routh v. Robertson, 19 Miss. 382, was precisely similar to Adm'r of Townsend v. Lorain Bank, supra, and the remarks above applied to that case are applicable to this.

In Artisans' Bank v. Backus, 36 N. Y. 100, a notice describing the note, and stating that it was protested for non-payment, and that the holders looked to the indorser for payment. was held valid. The court say: "The essential facts needful to be communicated to the indorser, to bind him, were: 1. That the note had not been paid at maturity. 2. That it had been protested for non-payment. 3. An identification of the note thus unpaid and protested." This case cites several prior decisions of the same court to the same effect. "Even a statement that a note had been protested on the day it became due, though the day was not stated, nor could be collected from the terms of the notice, was held to be sufficient in Litchfleld v. Cook (MS. Dec. 1853) in this court." See s. c., 5 Seld. 279. The case of Mills v. Bank of U. S. is cited and approved. The case of Artisans' Bank need not be regarded as overruling Pahquioque Bank v. Martin, 11 Abb. Pr. 291, for there the notice was simply of non-payment," not of protest and non-payment, or any thing equiv alent to that. In Dole v. Gold, 5 Barb. 490, a notice that note was due and not paid, and that the holder looked to the indorser, was held insufficient. This is not inconsistent with Artisans' Bank, but is inconsistent with the principal case, and Artisans' Bank is not necessarily consistent with the principal case, in spite of its approval of Mills v. Bank of U. S

In Burkham v. Trowbridge, 9 Mich. 209, it was held that a notice that the bill was protested for non-payment, after due demand and refusal, and that the holder looked to indorser for payment, was sufficient. The court say: "When an indorser, knowing, as he is bound to know, the nature of his liability, receives within the proper time and in the proper manner, a notice claiming a liability against him on a bill properly described, there is certainly no very good reason why he should be allowed to shut his eyes to any further facts plainly appearing, or to assume that although fairly understood, the words used con vey a clear assertion of the facts completing his liability, the notice was nevertheless not designed for any legal purpose whatever, and was meant as an idle ceremony." In this case the early cases of Platt v. Drake, 1 Doug. 296, and Newberry v. Trowbridge, 4 Mich. 391, are apparently overruled. But this case was particularly based on the force of the word "protest."

FITZSIMMONS V. CHAPMAN.

(37 Mich. 139.)

Deceit - damages— speculative profits.

The defendant falsely and fraudulently represented to the plaintiff that a cer tain manufacturing firm, residing in another State, were solvent, and that their removal to the town where the plaintiff and defendant lived, and the

Fitzsimmons v. Chapman.

setting up their business there, would largely increase its population and enhance the value of the plaintiff's property there. The plaintiff, relying on said representations, at the defendant's request paid a subscription to a fund to induce the firm to make such removal. They removed and set up business accordingly, but owing to their insolvency, none of the anticipated advantages accrued. Held, that an action for damages on account of said representation would not lie, the benefits expected being purely speculative.

T

RESPASS on the case for damages arising from the alleged false and fraudulent representations of a party other than the persons benefited. The plaintiff had a verdict, but the court awarded costs to the defendant, and the plaintiff excepted.

E. L. & M. B. Koon, A. St. John and J. F. Fitzsimmons, for plaintiff in error, cited 1 Hilliard on Torts, pp. 2-15; Pasley v. Freeman, 3 T. R. 51; Green v. Bryant, 2 Ga. 66; Longmeid v. Holliday, 6 Exch. 761; Beebe v. Knapp, 28 Mich. 53.

A. Dickerman, for defendant in error.

MARSTON, J. Plaintiff in error commenced this action to recover damages on account of certain alleged false and fraudulent representations made by the defendant, whereby the plaintiff was induced to subscribe and pay six hundred dollars in money and materials, toward a bonus of $20,000 to be raised by the citizens of Reading and paid to Colby Brothers & Co., a manufacturing firm of Vermont, as an inducement for them to remove their business to and carry on the same at Reading. The alleged representations made were, that defendant had been to Waterbury, Vermont, and there ascertained and knew the financial standing and responsibility of said company; that the company was then doing and carrying on a large business as manufacturers of clothes wringers, washers, children's carriages and sleighs; that their business was a profitable one; that for some years previously they had declared large dividends, to wit: 28 per cent profit on the dollar for their capital invested; that they had a paid up invested and working cash capital of $75,000 to $100,000 over and above their indebtedness and liabilities, and that he, defendant, knew they were good and responsible business men; that if plaintiff and others would raise $20,000 in money and material by subscription as a gift to said company they would remove their business from Waterbury to Reading and there carry on the same; that they would bring their

Fitzsimmons v. Chapman.

said capital and funds with them and permanently invest the same at Reading, which would enhance and increase the value of all property therein, and would increase and enhance the value of the plaintiff's real estate to an amount far exceeding his subscription, and would also increase the number of inhabitants and the amount of general business done and transacted at Reading; that as an inducement and in order to have plaintiff subscribe, he, the defendant, did subscribe and agree to pay toward said fund the sum of two thousand dollars in money; that plaintiff, relying upon these representations and upon the subscription made by defendant to be paid in money, subscribed and paid the amount of his subscription; that he afterward ascertained that defendant did not pay his said subscription in money, but only paid some $1,600 in lots at Reading at exorbitant prices,-the money which he apparently paid having been furnished him by said Colby company under a previous agreement entered into between the president of said company and said defendant; that although the said company did remove to Reading, yet that it was insolvent and did not bring the amount of capital represented; that it brought but little if any capital; that it had not been doing a profitable business at Waterbury, and did not have the capital represented invested there, and had not declared any dividends, and that the removal of said company to Reading had not enhanced the value of plaintiff's real estate, and had not increased the number of inhabitants at Reading, etc., to the plaintiff's damage. A question was also raised as to the company having sold out and given up a part of its business at Waterbury, but as plaintiff previous to his subscription having been made was informed by the president of the company of this fact at a public meeting held in Reading, we need not refer to it again.

Had this action been brought to recover from plaintiff the amount of his subscription, and he had set up these false and fraudulent representations to that action, a very different question would have arisen. And perhaps the question might have been somewhat dif ferent had the company not removed any part of its business from Waterbury to Reading, and no farther or other action been taken except the collection of the money. But as the company did remove its business to Reading and commenced business at that place, in buildings erected under their directions from the moneys subscribed, and failed only on account of not having or bringing the

Fitzsimmons v. Chapman.

amount of capital represented, it would seem clear that any damages which the plaintiff may have sustained thereby would result from his not receiving the full benefits which he otherwise expected and hoped to derive had the representations made proved true. Plaintiff did not expect to receive any direct benefits, either by way of a share in the profits of the company or otherwise, from their removal to and success in business at Reading. He took no stock in the company, nor did he invest any capital therein. He expected that the removal of such a company to Reading would increase the number of inhabitants and the amount of general business transacted there, which would necessarily enhance the value of his own and other property at that place and in the vicinity thereof. This he alleges was the real inducement. Such benefits are purely speculative and imaginative. Undoubtedly benefits such as were expected might to a greater or less extent flow from such a manufacturing establishment, but to what extent, what increase would there be to the population, what to the general business of the place? In consequence of this increased population and business, what advances would be likely to take place in the value of real estate generally and in particular in the value of plaintiff's property? How shall these things be ascertained and determined? It is true the defendant may have represented that the plaintiff would derive benefits from this expected rise in value, far exceeding the amount of his subscription. The plaintiff may have been of like opinion. There could, however, be no certainty in this. It was purely a matter of opinion, and these anticipated speculative profits are but seldom, if ever, realized. All such uncertain, indefinite and fanciful benefits are too remote and unrcliable to form any safe basis upon which to estimate damages. They depend upon contingencies, so many, various and uncertain, that it would in fact be impossible to arrive at any definite determination of the actual loss, by any trustworthy method known to the law. Taking the entire case as presented, we do not see that the plaintiff has any cause for complaint.

The judgment must be affirmed, with costs.
The other justices concurred.

Judgment affirmed.

Chope v. Detroit and Howell Plank Road Company.

The charter of a plank road company authorized it to build its road from & point in the city of Detroit, and to erect gates according to their reasonable discretion, subject to the condition that none should be placed in the city; afterward the city limits were so extended as to include a gate erected by the company. Held, that the rights of the company were not thereby restricted, and that the gate did not thereby become a nuisance, subject to injunction at the suit of the State.

SUIT

for an injunction. The facts are shown in the opinion.

H. M. Cheever and E. F. Coelyn, for complainant. Grants of exclusive privileges are to be construed strictly and against the grantee; nothing is taken by implication. Auburn & Cato Plank Road Co. v. Douglass, 5 Seld. 444; Croton Turnpike Co. v. Ryder, 1 Johns. Ch. 611, and Newburgh Turnpike Co. v. Miller, 5 id. 101, extending a franchise by implication, were overruled in Charles River Bridge v. Warren Bridge, 11 Pet. 420; Tuckahoe Canal Co. v. Tuckahoe R. R. Co., 11 Leigh, 42; Enfield Toll Bridge Co. v. H. & N. H. R. R. Co., 17 Conn. 454; Oswego Falls Bridge Co. v. Fish, 1 Barb. Ch. 547; Thompson v. N. Y. & Harlem R. R. Co.. 3 Sandf. Ch. 625; Binghampton Bridge, 3 Wall. 75; B. & O. R. R Co. v. State, 3 L. & Eq. Rep. 667; 3 Kent's Com. 459; Mohawk Bridge Co. v. U. & S. R. R. Co., 6 Paige, 554; Cayuga Bridge Co. v. Magee, 2 id. 116. Toll gate companies have no right to erect toll houses within the public highway. Thompson v. Androscoggin Bridge Co., 5 Me. 62; Fisher v. Coyle, 3 Watts, 408; Tucker v. Tower, 9 Pick. 109. Contra, Straits Turnpike Co. v. Hoadley, 11 Conn. 464; Ridge Turnpike Co. v. Stoever, 2 W. & S. 548; Wright v. Carter, 27 N. J. Law, 76,—reversed, 18 N. J. Eq. 94; State v. Passaic Turnpike Co., 27 N. J. Law, 217. The provision that no toll gate should be placed in the city meant that none should be maintained within the limits, however they might be extended. Regina v. Cottle, 3 Eng. L. & Eq. 474. That which is warranted by law cannot be a public nuisance. Hinchman v. Paterson Horse R. R.