A judgment in a suit to quiet title does not affect the rights of the owner who was not a party either in person or through his privies."7

Where a tax title was held valid on foreclosure as against the mortgagee, but the holder of the tax title claimed nothing under it against other parties to the action, and they sought no affirmative relief as against him, the judgment of foreclosure did not estop the holder under the patent title from asserting a defense in an action by the tax title holder to recover the land.68

A decree quieting title in favor of the holder of a tax title is good as against persons holding title under the original owner by previously executed but unrecorded deeds, who were not in possession.69

A judgment previously recovered by defendant against plaintiff in ejectment for the same land, having become final was a bar to a subsequent action by plaintiff to recover the land on the same issues.70

§ 1462. Damages-Assessment-Measure

"When, by the verdict, either party is entitled to recover money of the adverse party, the jury, in their verdict, must assess the amount of recovery."

"Whenever damages are recoverable, the plaintiff may claim and

duced to make to another than the holder of the tax title. Oldham v. Stephens, 25 P. 863, 45 Kan. 369.

67 Buck v. Simpson (Okl.) 166 P. 146, L. R. A. 1918F, 604.

68 Taylor v. Danley, 132 P. 583, 90 Kan. 1.

69 Utley v. Fee, 7 P. 555, 33 Kan. 683.

70 Markham v. Dugger, 126 P. 190, 34 Okl. 492.

71 Rev. Laws 1910, § 5015.

recover any rate of damages to which he may be entitled for the .cause of action established.” 72

Defendant is liable for all natural consequences of his wrongful act, whether they were foreseen or injuries are more serious than intended.73

74

The statute relative to the measure of damages is merely de claratory of the common law."5

72 Rev. Laws 1910, § 5038.

73 Walbridge v. Walbridge, 103 P. 89, 80 Kan. 567.

74 Rev. Laws 1910, §§ 2852-2891.

75 Breach of contract.-Where a seller refuses to deliver as contracted, he is liable for an amount sufficient to cover the loss resulting therefrom. W. H. Coyle Consol. Cos. v. Swift & Co., 141 P. 1114, 42 Okl. 613.

In action against tenant for breach of lease, the damages cannot exceed amount party could have gained by full performance on both sides, except as exemplary and penal damages. Rucker v. Mason, 61 Okl. 270, 161 P. 195; Rev. Laws 1910, §§ 2871, 2878.

In suit on written contract and note and mortgage given to secure its performance, wherein plaintiff claimed title to realty covered by mortgage after breach of contract, measure of damages was not governed by Rev. Laws 1910, § 2858, relating to damages for breach of contract as to real estate. Garnett v. Storm, 64 Okl. 137, 166 P. 401.

Damages for breach of oil and gas drilling contract would include necessary expenses in moving plaintiff's rig and oil-drilling machinery to location and in drilling until interruption, and a reasonable compensation for loss of time in remaining on premises at defendant's request. Letcher v. Maloney (Okl.) 172 P. 972.

Injury to property.—Where a railroad company appropriates an alley in a city for its tracks, and makes a deep excavation near to the lot lines, the damage recoverable is restricted to the special injury sustained by a lot owner, and he does not suffer damages recoverable at law for injury to lateral support of his property until the earth is so much disturbed that it slides or falls. Kansas City Northwestern R. Co. v. Schwake, 78 P. 431, 70 Kan. 141, 68 L. R. A. 673, 3 Ann. Cas. 118.

In an action against a railroad company to recover damages for failure to maintain proper cattle guards, whereby plaintiff was compelled to guard his cattle during parts of two years, and lost the use of certain pasturage, and the rental value of his farm was reduced thereby, evidence held to sustain the award of damages. Atchison, T. & S. F. Ry. Co. v. Billings, 93 P. 590, 77 Kan. 119.

Trespass. In actions for trespass, the rental value of the premises during the time the party is forcibly and unlawfully kept out of possession is the proper measure of damages, and it is not necessary to such recovery that the party entitled thereto should have regained his possession. City of Oklahoma City v. Hill, 50 P. 242, 6 Okl. 114.

The cost of restoring land to its former condition is the measure of damages for trespass thereof, when such cost is less than the diminution in the market value of the whole property by reason of the injury; but if the

§ 1463. Breach of warranty

"Where any grantor applies in any action to defend his warranty or fails to appear after due notice, the court shall determine all

cost is more than the diminution in market value, the latter is the true measure of damages. Enid & A. Ry. Co. v. Wiley, 78 P. 96, 14 Okl. 310.

Where one willfully and without authority enters upon another's land and cuts and removes timber, the measure of damages is three times what would compensate owner for actual injury. Kilgore v. Rowland, 172 P. 43; Rev. Laws 1910, § 2883.

Where a railway company builds its road through a fenced pasture, and fails to erect and maintain cattle guards at the entrance and exit of its road to and from the pasture, as required by statute, the owner may recover damages for the loss of the pasture, or, if he put his animals therein, to reasonable compensation for his efforts in preventing them from straying from the pasture, and injuring the crops on his own premises, or from trespassing on the lands of other persons. Nelson v. St. Louis & S. F. Ry. Co., 30 P. 178, 49 Kan. 165.

The good faith of one permitting his cattle to trespass on the land of another may be shown in order to relieve him from punitive damages. Where one, without authority, turns his cattle into another's field, where they do damage, nominal damages, if no more, may be recovered. The cost of restoring realty to its former condition and compensation for loss of use is the measure of damages for injury thereto but if such cost is more than diminution in the market value, the latter is generally the true measure of damages. Harris v. Gray (Okl.) 165 P. 1148.

Water, damages from.—In action for injury to growing crops from damming up a water course, causing it to overflow land and ruin crops, the measure of damages would be difference between reasonable value of crops, which would have been raised but for injury, and market value of any crops actually raised thereon. In action for injury to growing crops from damming up of water course and causing an overflow, the measure of recovery, if no crops were planted, or if crops planted failed to come up by reason of injury, was the reasonable rental value of land for such year or years. Castle V. Reeburgh, 75 Okl. 22, 181 P. 297.

In an action for damages for destruction of crops by maintenance of a dam causing the lands of another to be flooded, proper measure of damages was the value of the property at the time of the injury with interest from said date. Oklahoma City v. Hoke, 75 Okl. 211, 182 P. 692.

In an action to recover for an injury to property, arising from the carelessness and negligence of corporate authorities in permitting a water standpipe to continuously overflow upon the premises of an adjacent property owner, the measure of damages is the loss actually sustained, and, in case of a permanent injury to the property, the true measure of damages is the difference between the value of the property immediately prior to the location and construction of such standpipe and its diminished value immediately thereafter. Town of Norman v. Ince, 58 P, 632, 8 Okl. 412.

Wrongful attachment.-At common law both actual and punitive damages may be recovered for the wrongful and malicious suing out of an attachment without probable cause, while under the statute only actual dam

the rights of all parties, and in case the recovery is adverse to the warranty the warrantee shall recover of the warrantor the price of the land paid for the conveyance at the time of the warranty, the

ages including a reasonable attorney's fee, may be recovered on the bond for wrongful attachment. Overton v. Sigmon Furniture Mfg. Co., 50 Okl. 531, 151 P. 215.

Fraudulent representations.-The measure of damages for the seller's fraudulent representations as to value is the difference between the actual value and the value as represented. Silverwood v. Carpenter, 51 Okl. 745, 152 P. 381; Werline v. Aldred, 57 Okl. 391, 157 P. 305.

The measure of damages for deceit in an exchange of lands is the difference in the value of the land had it been as represented and its actual value. Howe v. Martin, 102 P. 128, 23 Okl. 561, 138 Am. St. Rep. 840.

In a purchaser's action against a real estate broker for damages from fraudulent representations as to the price asked by the owner, held, that plaintiff was entitled to recover the excess pocketed by defendant, less the usual commission for making the sale. Stevens v. Reilly, 56 Okl. 455, 156 P. 157.

Bailment. In action against bailee for hire for loss of goods having no market value, measure of damages is such reasonable value as they had to the owner from the nature and condition of the goods and purpose to which they were adapted and used. In action against bailee for hire for loss of household goods, measure of damages, where they have market value, is the cash market value thereof. Stack v. Gudgel, 60 Okl. 32, 158 P. 1144, L. R. A. 1917D, 493.

In an action against a carrier for loss of household goods and wearing apparel having no fixed market value, the measure of damages is their value to the owner. St. Louis & S. F. R. Co. v. Dunham, 129 P. 862, 36 Okl. 724.

A carrier of a passenger's baggage is ordinarily liable only to the owner in case of loss or damage, unless when receiving the property as baggage it is informed that it is owned by another. Where passenger procures another's property to be carried as baggage, the carrier, without knowledge of true ownership, is a gratuitous bailee, and liable to owner only for loss or damage from its gross negligence or willful misconduct. Lusk v. Bloch (Okl.) 168 P. 430.

Medicine expenses. In action for an assault and battery, the amount of physician's bill to plaintiff was a proper item to be considered by jury in estimating damages. Kenworthy v. Pendergrass (Okl.) 175 P. 939.

In an action to recover for injuries inflicted by a vicious dog, evidence held to show that certain expenses incurred in taking the Pasteur treatment for hydrophobia were necessary and a proper item of damages. Ayers v. Macoughtry, 117 P. 1088, 29 Okl. 399, 37 L. R. A. (N. S.) 865.

Parent and child.-In determining the damages to be awarded a parent for loss of the services of a minor child, the jury may consider that with age, growth, and experience the value of the child's services would increase, though they cannot consider that the child might, if not injured, engage in any particular calling. In an action by a parent for the loss of the services of a minor child, the damage to the parent is limited to such as will com

value of all improvements lost, if any, and all sums necessarily expended, including a reasonable attorney fee, and interest at the

pensate him for the loss of the child's services to the time of his majority, the reasonable amount expended in the treatment and care of the child, and the value of the parent's services for nursing. Shawnee Gas & Electric Co. v. Motesenbocker. 138 P. 790, 41 Okl. 454.

Where father informs minor son that he must do for himself, permits him to remain away from home for more than a year, and son suffers injuries and notifies father, but receives no offer of assistance, son may recover loss due to impairment of earning capacity prior to majority. Harriss Irby Cotton Co. v. Duncan, 57 Okl. 761, 157 P. 746.

Master and servant.-The measure of damages for breach of a contract for the use of plaintiff's well-drilling outfit and his personal services for two months was the difference between the contract price and what plaintiff was reasonably able to earn by other similar employment, after deducting the expenses of such other employment. Robertson v. Vandeventer, 51 Okl. 561, 152 P. 107.

Measure of damages for breach of contract of employment by employer is prima facie sum stipulated to be paid. In action for damages for breach of contract of employment by employer, the employer has burden of showing what amount servant earned or might have earned had he used due diligence in securing other employment of same character. Sharpless Separator Co. v. Gray, 63 Okl. 73, 161 P. 1074; Ditzler Dry Goods Co. v. Sanders, 44 Okl. 678, 146 P. 17.

Libel and slander.-The statute does not authorize recovery of exemplary damages in the absence of express malice actuating the libelous publication. Zimmerman v. Newsom, 46 Okl. 230, 148 P. 733; Rev. Laws 1910, § 4961.

The statute declaring that when verdict in action for libel is for plaintiff it shall in no case be less than $100, authorizes a minimum verdict in each action, and not for each act of libel. Kelly v. Roetzel, 64 Okl. 36, 165 P. 1150. Conspiracy-Malicious prosecution-Insult-Assault.-A verdict for $20.000 for a conspiracy to defraud plaintiff of his stock in a bank and oust him from his possession as president held excessive, and would be reduced to $15,400. Felt v. Westlake (Okl.) 174 P. 1041.

A verdict of $2,500 for malicious prosecution on a complaint charging a school teacher with beating a board bill, an offense under Rev. Laws 1910, § 2704, held not excessive. Spencer v. Lambert (Okl.) 173 P. 1035.

As plaintiff went into defendant's store with a package containing a purchase made of another merchant, a member of defendant firm in a rude and insolent manner, under the pretense that plaintiff had stolen the package from defendant's stock, jerked it from her in the presence of others, examined it, and, after discovering that it had not been purchased there, returned it to plaintiff, without apology, and ordered her from the store. Held, that a verdict allowing plaintiff $2,500 was excessive and should be reduced to $1,000. Lonergan v. Wm. Small & Co., 81 Kan. 48, 105 P. 27, 25 L. R. A. (N. S.) 976.

In an action for an assault, the testimony showed that defendant struck plaintiff in the face, causing severe injury to the nose. The defendant admitted the assault. The court instructed that if plaintiff had been unlawfully assaulted they should allow reasonable compensation. The jury found