faith in these appraisements or valuations. | ces which gave the vendee an improper conIt is wholly immaterial what they were trol over him amounting to mental imprisoncalled or whether any record was made of ment; if, in short, the vendee behaved honthem. He had notice of them, saw them, estly and the vendor was able to act like a and acted upon them. It appears that they free man with his eyes open-then the one were made by the companies themselves had a right to sell and the other to buy on through their accredited representatives as any terms they saw proper to agree upon. the evidence and the signatures to the let- The law will never interfere between the ters attest. There was no evidence or offer parties themselves to set aside an honest of evidence tending to show that Brahm or contract which they have voluntarily made.' any of the other parties had any knowledge Davidson v. Little, 22 Pa. 245, 60 Am. Dec. of the value of this real estate which they 81. Or, as stated in Whelen v. Phillips, 151 concealed from Kramer, or that they had Pa. 312, 25 Atl. 44: 'In the absence of a placed any value thereon, or that they were trust relation any person sui juris may sell parties to any negotiation with knowledge upon any sum agreed upon.' Here, as in reserved of a price or purchaser therefor Jackson's Estate, 203 Pa. 33, 52 Atl. 125, in excess of that received by Kramer; nor the vendor is dissatisfied with and repents is there any evidence or offer of evidence the bargain he made, but he has no one oththat they had information which they oughter than himself to condemn.' Kramer was to have disclosed to him. They owed him no duty which required them to take more care of him than he did of himself. While Brahm was mistaken in telling Kramer he thought he could not mortgage his undivided interest in the land, there is nothing in the evidence to warrant a finding that this was a fraudulent statement or carried with it an intent to deceive. This opinion is held by many who have no special knowledge on the subject. It was as much the duty of Kramer to find out from competent authority whether this could be done, and was as easy to ascertain, as was his inquiry and discussion of the probable value of this land prior to the time of his sale. It is wholly immaterial what was asked for the property after Kramer sold it, or what the owners did for the purpose of obtaining a higher price, if there was no fraud perpetrated or imposition practiced upon him in obtaining his interest. Every opportunity was given him to show an arrangement or prior knowledge or a concealment of material facts in Brahm or any of the others by which imposition might be presumed. Failing to present any evidence or offers of evidence to substantiate his naked allegation of fraud, undue influence, or violation of a trust at and prior to his sale, the attempt to bring into the case the subsequent value of this property could have no possible bearing upon the issue as raised.

not an heir expectant, the estate was fully vested in him, no one exercised any improper control over him, and he was long past the age when the law made him competent to transact business as he saw fit. Inadequacy of price, improvidence, surprise, and mere hardship, none of these, nor all combined, furnish an adequate reason for a judicial rescission of a contract. For such action something more is demanded-such as fraud, mistake, or illegality. Graham v. Pancoast, 30 Pa. 89. This claimant, in his twenty-fifth year, against the advice of his father, uncles, and aunts, persisted in selling and did sell to them on terms which he himself fixed. In the absence of any color of fraud, or violation of trust, he dealt with them at arm's length. He has therefore no standing in a court of equity for relief, and his claim must be dismissed.

"It is doubtful whether on the pleading and record, even if the semblance of a case had been made out, relief could have been granted in this proceeding. But the question is not raised. We have accepted the issue as presented, and have disposed of the question on its merits."

The court in banc dismissed exceptions to the adjudication, and on it the decree is af

firmed.

TERMINAL RY. CO.

(223 Pa. 106)

(Supreme Court of Pennsylvania. Jan. 4, 1909.) 1. CONTRACTS (§ 123*)-VALIDITY — LEGALITY OF OBJECT.

The mere fact that a contract involved a

"It may be conceded that gross inade- BIGHAM et al. v. WABASH-PITTSBURG quacy of price is not only suspicious, but fraudulent per se, as between a guardian and ward; so in any other relationship of trust and confidence where guardian or trustee directly or indirectly profits by the imposition he has practiced. Eberts v. Eberts, 55 Pa. 110. The best faith must be observed between parties occupying this relationship. Wills' Appeal, 22 Pa. 325. But if the vendor was thoroughly acquainted with every fact which it was necessary for him to know; if he was 21 years of age and of sound mind; if there were no circumstan

change of grade in a public street did not make the purpose unlawful and the contract void ab initio, where it only required the consent of the city and the adjoining owner to do everything the contracting party agreed to do, for it will be presumed that such consent had been obtained

or could be secured.

[Ed. Note. For other cases, see Contracts, Dec. Dig. § 123.*]

7. DAMAGES (8_120*)-BREACH OF CONTRACT-mated cost per cubic yard averred in the decMEASURE OF DAMAGES.

mind the benefit which the contracting parties had in contemplation when the agreement was entered into. As we read the contract in the present case, there was no binding covenant requiring appellant to furnish 150,000 cubic yards of earth to plaintiffs. There was a license or privilege granted to deposit on the lands of plaintiffs so much earth, estimated at 150,000 cubic yards, as would be necessary to make the grade of the road as agreed upon. The railroad company was desirous of securing a place to dump its waste material, and the appellees had such a property. These were the conditions when the contract was made. The appellees have a right to the benefit of their bargain, but nothing more. Under the facts of this case the true measure of damages would seem to be the difference in the value of the plaintiffs' lands with the fill completed and as it was at the time of the breach with the fill only partially made. In this respect what was said in Seely v. Alden, 61 Pa. 302, 100 Am. Dec. 642, applies: “It may turn out that the cost of removing the deposit in a certain case would be less than the difference in the value of the land, and then the cost of removal would be the proper measure of damages; or it may be that the cost of removal would be much greater than the injury by the deposit when the true measure would be the difference in value merely." The question of the proper measure of damages must always be taken into consideration by the court in the proper disposition of any case wherein damages are claimed. Wilkinson v. North East Borough, 215 Pa. 486, 64 Atl. 734.

nial of appellant's liability to furnish the | follow a breach of the contract, keeping in greater amount necessarily includes the lesser and certainly is sufficient to put upon plaintiffs the burden of establishing not only the contract and the liability of appellant under it, but the damages suffered by reason of the alleged breach. Again, in the affidavit of defense it is denied that the appellant is indebted to the plaintiffs in the sum of $35,814, being the amount claimed in the statement of claim, or any other sum whatever. Certainly these denials are sufficient to put plaintiffs upon notice that the liability of appellant under the contract would be contested, and, if its liability be established, the measure of damages, which is a conclusion of law, could not properly be determined until the evidence was in and the facts understood. This is the doctrine of Seely v. Alden, 61 Pa. 302, 100 Am. Dec. 642, and numerous other cases. Independently, however, of the question whether it was necessary to include in the affidavit of defense a denial of the measure of damages inferentially set up in the statement of claim, the general rule is that the plaintiffs must prove the amount of damages sustained by them, or they will only be entitled to nominal damages, and that failure to deny the amount of damages alleged to have been sustained does not admit them. Lucot v. Rodgers, 159 Pa. 58, 28 Atl. 242; Howell v. Bennett, 74 Hun, 555, 26 N. Y. Supp. 627. It has been well said that it is difficult to point out in advance what the true measure of damages should be under a given state of facts. If there be different modes of measuring damages, depending on the circumstances, the court should first hear the evidence and instruct the jury afterward as to the proper measure to be applied. The underlying principle in such cases is that the damages must be such as might naturally be expected to

For the reason therefore that the proper measure of damages was not adopted in the present case, the judgment is reversed, and a venire facias de novo awarded.

March 19, 1909.)
ASSAULT AND BATTERY (§ 69*)-CRIMINAL RE-
SPONSIBILITY-DEFENSE OF PROPERTY.

Where the owner of land moved his fence back merely for convenience in building, because of excavations by road commissioners over the line, and at all times claimed to the true line, his possession of the strip between the fence and such line was as actual as it was of the rest of the land; and hence he was entitled, in a trial for assaulting a road commissioner who was working over the line, to justify on the ground of defense of property.

[Ed. Note. For other cases, see Assault and Battery, Cent. Dig. § 99; Dec. Dig. § 69.*]

Exceptions from Washington County Court; Wm. H. Taylor, Judge.

Gustus W. Cleveland was convicted of breach of the peace, and excepts. Reversed and remanded.

Argued before ROWELL, C. J., and HASELTON, MUNSON, WATSON, and POWERS, JJ.

Benjamin Gates, State's Atty., for the State. M. M. Gordon, for respondent.

ROWELL, C. J. This is a complaint for a breach of the peace by assaulting and striking one Winslow. The respondent was in possession of a tract of land under a bond for a deed that adjoined a highway in the town of Berlin, whereof Winslow was road commissioner. At the time in question Winslow and his men were excavating and drawing away dirt for highway purposes from a point within the limits of the highway as fenced adjacent to the respondent's land. Before the work began the respondent went to the place with Winslow, told him where he could get the dirt, and pointed out the monuments marking the line, and told him he must not get over it onto him. Later the respondent came and found the commissioner working over the line, and bade him to desist, as he was on his land; but the commissioner kept at work, whereupon the respondent struck him with a hoe. At that point there was a fence, which the respondent claimed stood in from the line of the highway about two feet onto his land, moved there, he claimed, because of excavations over the line by former road commissioners. It did not definitely appear when the fence was moved, and there was no evidence tending to show that the respondent had been in actual possession or occupancy of the strip lying between the fence and the line of the highway as surveyed after the fence was moved. The respondent sought to justify on the ground of self-defense and the defense of property. But the court would not let him justify on the ground of defense of property, because there was no evidence tending to show that he had actual possession of said strip after the fence was moved, and that

constructive possession was not enough. This was error, for, without considering whether constructive possession was enough or not, the respondent had actual possession, as it is manifest from the tenor of his testimony that the fence was moved back merely for convenience in building, he all the time claiming to the true line, and therefore his possession of said strip was not thereby affected, but was thereafter just as actual as it was of the rest of the land, and that it was actual of that is not denied. See Brown v. Clark, 73 Vt. 233, 50 Atl. 1066.

The charge on the subject of self-defense is complained of; but we think, taken as a whole, the jury was not misled thereby. Reversed and remanded.

(82 Vt. 142)

CITY OF MONTPELIER v. TOWN OF
WORCESTER.

(Supreme Court of Vermont. March 18, 1909.)
PAUPERS (§ 20*)-SUPPORT--RESIDENCE-MAR-
RIED WOMEN.

Under Laws 1906, p. 97, No. 102, § 1, a married woman who lives with her husband in a town where he last resided for three full ed to have gained a residence there, so as to years, supporting himself and family, is deemcharge the town for her support as a pauper. By section 2 the act does not apply to pending suits. Held, that the derivative residence of a married woman under the act may be based on her situation prior to the taking effect of the act.

[Ed. Note.-For other cases, see Paupers, Dec. Dig. § 20.*]

Exceptions from City Court of Montpelier; Erwin M. Harvey, Judge. Action by the City of Montpelier against the Town of Worcester. From a judgment for plaintiff, defendant brings exceptions. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, and HASELTON, JJ. Frederick P. Carleton, for plaintiff. H. C. Sluertleff, for defendant.

WATSON, J. It was held in Jericho v. Morristown, 77 Vt. 367, 60 Atl. 233, that a married woman does not gain a residence in her own right, nor derive one from her husband, by living with him in a town where he last resided for three full years, supporting himself and family, so as to make the town liable to another town in which she lives for support furnished to her as a pauper after the death of her husband. At the session of the Legislature next after the decision in that case was promulgated, an act was passed, section 1 of which reads: "A married woman who lives with her husband in a town where he last resided for three full years, supporting himself and family, shall be deemed to have gained a residence in such town, and such town shall be liable for her support as a pauper." By section 2 the act is not to apply to pending

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

Previous

suits. Laws 1906, p. 97, No. 102.
to this enactment the alleged poor person
in the case at bar lived with her husband in
the defendant town, where he last resided
for three full years, supporting himself and
family; but the assistance for which a re-
covery is sought was not rendered until after
the act became operative.

COOK V. GORE'S ESTATE.

(82 Vt. 137)

(Supreme Court of Vermont. Windham. March 18, 1909.)

1. CONTRACTS (§ 191*)-CONSTRUCTION.

ed for it.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. § 852; Dec. Dig. § 191.*] 2. LIMITATION OF ACTIONS ($ 66*)-ACCRUAL OF ACTION-DEMAND-PERFORMANCE OF CONTRACT.

Plaintiff let her father have a certain sum in his lifetime, which he was to invest in a place for her and the children, plaintiff to have interest on it and to receive the money when she callThe sole question is whether, in these cir-ed for it; and her children were to live and cumstances, the previous situation of the al- board there, plaintiff paying him for their board, leged poor person gives her a derivative resi- and she and her children boarded there for a dence by the law of 1906. A very similar considerable period. Held, that the agreement was that plaintiff should let her father put the question was before this court in Worcester money in the place in return for a home and v. East Montpelier, 61 Vt. 139, 17 Atl. 842, board for herself and children in part payment on the construction of the pauper law of thereof; plaintiff to receive the money back, 1886 (Laws 1886, p. 34, No. 42); the court with interest not otherwise paid, when she callsaying it was not whether the act should be construed to be retroactive, in the sense of affecting the rights and liabilities of towns or individuals in respect of the support of paupers prior to its taking effect, but whether it should be applied, in determining the legal residence of paupers, only to acts and facts subsequent to that time, or to acts and facts prior as well. Section 13 of that act provided that for all purposes under the act the residence of a person should be in the town in which he last resided for the term of three full years, maintaining himself and family; and the court said there was nothing to indicate an intention by the Legislature to confine the means of acquiring a residence to the time subsequent to the taking effect of the act. The law was held not to be so limited. Yet the provisions of the law there under consideration are no more indicative of an intention to give such unlimited effect than are those of the act of 1906, beyond the express terms of the latter excluding pending suits from its operation.

Where plaintiff let her father have money to put in a house in consideration of his rooming and boarding herself and children, plaintiff to have the money back, with interest, when she called for it, so far as it had not been otherwise paid, limitations would not begin to ruu against an action for the money until plaintiff demanded its return.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 366; Dec. Dig. § 66.*] Exceptions from Windham County Court; George M. Powers, Judge.

Action by Mary A. Cook against Lorenzo Gore's estate to compel the allowance of a claim against the estate. Judgment and verdict for claimant, and the estate excepts. Judgment affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, and HASELTON, JJ.

Chase & Daley, for claimant. Arthur P. Carpenter and Addison E. Cudworth, for defendant.

In any suit thus excluded the alleged poor person's residence no more rests upon a situ- | ation previous to the enactment than it may in suits subsequently brought, as was the WATSON, J. The evidence introduced by one before us. This was within the presum- the plaintiff, showing that on October 22, ed knowledge of the lawmakers, and no rea1894, she let her father, Lorenzo Gore, then sonable explanation can be given why the in life, have the sum of $1,035, does not law was expressly made nonapplicable in appear from the record to have been disthe one case and not in the other, the resi-puted. Sylvia A. Gore, the widow of Lorendence in each being based upon such previous situation, unless a distinction was intended. Had the Legislature intended that auch derivative residence should exist only when acquired subsequent to the passage of the law giving it, it may fairly be assumed that the provision limiting its application would not have been confined to pending suits, with nothing indicating an intention of further restriction. We think the construction given to the law of 1886 in Worcester v. East Montpelier should be followed here, and that the derivative residence of a married woman by the act of 1906 may be based upon her situation prior to the time when the act took effect.

Judgment affirmed.

zo, testified that the agreement between him and Mary (the plaintiff) in regard to this money was: "The money was put into the place for her and her children, and she was to have her pay and interest on it," and that "she should have her money when she called for it, her children should have their home and be boarded there, and she should pay him for their board." The witness further testified that the plaintiff's young son was afterwards boarded by Lorenzo four years and a few months at $1 per week as a payment on this loan, that he boarded other of Mary's children as a payment thereon, and that Mary was boarded there two summers in the same way at the price of $1.50 per week. Lorenzo died January 24,