rate of ten per centum per annum on all sums so paid from the time of payment." 76

The measure of damages for a breach of warranty of personal

for plaintiff, and assessed his damages at $1; 50 cents for physical pain, and 50 cents for insult. Held, that the verdict was inadequate. Sundgren v. Stevens, 119 P. 322, 86 Kan. 154, 39 L. R. A. (N. S.) 487.

In a tenant's action for an attempted eviction and assault by a landlord, evidence held to sustain a verdict of $1,000 against the landlord. Weatherly v. Manatt (Okl.) 179 P. 470.

Mental suffering.-Damages for mental suffering may be recovered, where such suffering is the proximate and natural result of the assault, though no battery or bodily injury was inflicted. Lonergan v. Wm. Small & Co., 81 Kan. 48, 105 P. 27, 25 L. R. A. (N. S.) 976.

In an action by a passenger against a carrier for false arrest, plaintiff may recover for bodily and mental suffering. Chicago, R. I. & P. Ry. Co. v. Radford, 129 P. 834, 36 Okl. 657.

In an action for damages for expulsion from a train, where recovery is warranted by the evidence, plaintiff may recover for insult, injured feelings, and humiliation, together with the actual expense, though the conductor used no violence, and was without fault. St. Louis & S. F. R. Co. v. Yount, 30 Okl. 371, 120 P. 627.

Telegrams. In the absence of statute, damages are not recoverable for mental distress alone, caused by negligent delay in delivering a telegram. Western Union Telegraph Co. v. Choteau, 115 P. 879, 28 Okl. 664, 49 L. R. A. (N. S.) 206, Ann. Cas. 1912D, 824; Western Union Telegraph Co. v. Foy, 124 P. 305, 32 Okl. 801, 49 L. R. A. (N. S.) 343; Thomas v. Western Union Telegraph Co., 30 Okl. 63, 118 P. 370.

Damages for mental pain and suffering alone, occasioned by the negligence of a telegraph company in failing to deliver a message announcing the death of a relative, cannot be recovered. Butner v. Western Union Telegraph Co., 2 Okl. 234, 37 Pac. 1087.

Telegrams. The measure of damages for the incorrect transmission of a telegram is the actual damage which the sendee suffers up to the time of notice of the mistake. Levy Bros. v. Western Union Telegraph Co., 39 Okl. 416, 135 P. 423.

Compensatory damages may be recovered from a telegraph company for failure to deliver a message containing an offer to enter into a contract, where there is competent evidence establishing the proper measure of damages. Western Union Telegraph Co. v. Sights, 126 P. 234, 34 Okl. 461, 42 L. R. A. (N. S.) 419, Ann. Cas. 1914C, 204.

Where a telegraph company omitted from a message to real estate brokers the word "net." resulting in the brokers negotiating a sale at a price which would leave them no commission, and the omission was discovered before consummation of the sale, but when the brokers could not refuse to complete the deal, the company was liable to the brokers for the actual value of their services up to the discovery of the omission. In order to render a telegraph company liable in an action in tort for the omission of a word from a telegram, it is sufficient if the damages claimed are such as might

76 Rev. Laws 1910, § 1167.

property is the difference between the actual value of the property at the time of sale and what its value would have been if it had complied with the warranty."

reasonably be expected to result from error in transmission. Levy Bros. v. Western Union Telegraph Co., 39 Okl. 416, 135 P. 423.

A verdict for $2,000 for personal injuries resulting from failure to deliver a telegram, whereby plaintiff was in great pain and suffering for many days resulting in a miscarriage and in permanent injury, was not excessive. Western Union Telegraph Co. v. Crawford, 116 P. 925, 29 Okl. 143, 35 L. R. A. (N. S.) 930.

A telegraph message from an agent to his principal as follows: "Highwater, expense heavy, send ten dollars, funds low"-where no explanation at the time is made, will not support evidence showing the loss of a cherry crop in Arkansas, which is said to have been lost or damaged because of a failure to correctly transmit such message, as such item of damages could not have been in the reasonable contemplation of the parties when the contract for the transmission of the message was entered into. Where one seeks to recover damages from a telegraph company for a failure to correctly transmit a message delivered to it, only such damages may be recovered as may fairly and reasonably be considered as arising naturally in the usual course of things from the breach itself, or such as may reasonably be supposed to have been in contemplation of the parties at the time they

77 Burgess v. Felix, 140 P. 1180, 42 Okl. 193; Jackson v. Bates (Okl.) 170 P. 897; Kansas City Hay Press Co. v. Williams, 51 Okl. 6, 151 P. 570. Under Rev. Laws 1910, §§ 2865, 2866, the detriment caused by breach of warranty of fitness of an animal for a particular purpose is the excess of its value if the warranty had been complied with over its actual value, together with fair compensation for the loss from an effort in good faith to use it for such purpose. Parsons v. Smith, 51 Okl. 495, 151 P. 862.

The measure of damages for breach of warranty of fitness of machinery to do certain work is the difference in the value of the machinery as warranted to be, and its actual value. Murray Co. v. Palmer, 55 Okl. 480, 154 P. 1137.

Under Rev. Laws 1910, §§ 2865, 2866, damages for breach of warranty or fitness of article for particular purpose is the excess of the value which it would have had at time of warranty if it had been complied with, over actual value then, and fair compensation for loss incurred in bona fide effort to use it for such purpose. On breach of warranty of fitness for particular purpose, buyer may recover anticipated profits, where business of which he was deprived was contemplated by parties, and where such profit is reasonably certain, even though speculative and uncertain. Bishop-Babcock-Becker Co. v. Estes Drug Co., 63 Okl. 117, 163 P. 276.

Where traction engine was sold under warranty that it would do certain work, in reliance on which buyer executed his notes in payment, and where warranty was breached and buyer sought a rescission, he might recover actual damages sustained by reason of breach. Hart-Parr Co. v. Duncan, 75 Okl. 59, 181 P. 288, 4 A. L. R. 1434.

HON.PL.& PRAC.-88

(1393)

§ 1464. Unlawful detention-Conversion

Where it appears, in an action brought by the plaintiff, as the owner of a stock of merchandise, to recover damages against a sheriff who has levied on and taken possession of the stock in good

made the contract. Okl. 274.

Western Union Telegraph Co. v. Pratt, 89 P. 237, 18

Carriers-Shipments.--Where shipper specially brings to carrier's attention at time of delivery for shipment his intent to use goods for a particular purpose, or circumstances are known to carrier from which intent ought reasonably to be inferred, damages for delay may be recovered for natural consequences of failure of such object. Where shipper of cotton seed cake, known by carrier's agent to have been purchased to feed shipper's cattle, at time of contract for shipment informed agent that he needed it and was told that it would promptly arrive, the conversation and circumstances gave carrier notice of intended use, so as to authorize recovery for depreciation in stock resulting from negligent failure to deliver as agreed. Lusk v. Kennedy (Okl.) 176 P. 502.

Carrier contracting to deliver certain machinery at a certain time for a certain purpose, and failing so to do, held liable for such amount as would reasonably compensate the shipper. Ft. Smith & W. R. Co. v. Williams, 121 P. 275, 30 Okl. 726, 40 L. R. A. (N. S.) 494.

In an action for injury by delay to shipment of cattle, where the evidence showed damages slightly in excess of $90, a verdict for $175 is excessive. Midland Valley R. Co. v. George, 127 P. 871, 36 Okl. 12.

In an action against a carrier for delay in delivery of machinery, the proper measure of damages in the absence of special notice is the rentable value of the machinery during the delay, with reasonable expenses of plaintiff in endeavoring to secure delivery. Chicago, R. I. & P. Ry. Co. v. Reid, 38 Okl. 214, 132 P. 812.

In an action against a carrier for unreasonable delay in transporting machinery, elements of damages recoverable by the shipper stated. St. Louis & S. F. R. Co. v. Farmers' Union Gin Co., 125 P. 894, 34 Okl. 270.

In an action for negligent delay in delivery of machinery, the measure of damages, in the absence of special notice, is its rental value pending delivery, with the reasonable expenses incurred in endeavoring to secure delivery. In an action for damages from delay in the delivery of certain machinery, plaintiff, without notice that employés' wages would be lost in event of delay, cannot recover for the same. Missouri, O. & G. Ry. Co. v. Hazlett & Price, 128 P. 105. 35 Okl. 12.

To recover special damages for delay in shipment of freight, it must be shown that such damages were within contemplation of both parties to contract. Wichita Falls & N. W. Ry. Co. v. D. Cawley Co. (Okl.) 172 P. 70. In the statement of the rule that, where a common carrier fails to deliver merchandise within a reasonable time, the measure of damages in the depreciation in the market value between the date on which the delivery should have been made and the date on which it was made, the term "market value" means the value at which the article would be sold in the open market in the quantities as carried, and where the articles shipped are merchandise in large quantities, it is improper to measure the damages by

faith, as the property of a third party, that the plaintiff has purchased back the goods from a stranger, who bid them off at the sheriff's sale, the measure of his damages is the sum thus paid, not greater than the market value, and, in addition, such special damages as

the market value of such merchandise when sold at retail. Chicago, R. I. & P. Ry. Co. v. Broe, 86 P. 441, 16 Okl. 25.

Where a railroad company fails and neglects to deliver a car load of freight within a reasonable time (taking into consideration all of the conditions surrounding the shipment), and such delay is due to the negligence of the company, in the absence of any evidence to the effect that the consignee has suffered actual damages, he can recover nominal damages only. Chicago, R. I. & P. Ry. Co. v. Broe, 86 P. 441, 16 Okl. 25. The measure of damages in an action against a negligent collecting bank is the actual loss which plaintiff has suffered, which prima facie is the amount of the claim given the bank for collection, where there is a reasonable probability that it could have been collected except for the bank's negligence. St. Louis Carbonating & Mfg. Co. v. Lookeba State Bank, 130 P. 280, 35 Okl. 434. In an action against a carrier for damage to household goods or wearing apparel, the measure of damages is the difference in their actual value prior and subsequent to the injury, and not the difference in the market value of similar goods at such time, at the nearest place where such market obtains. St. Louis & S. F. R. Co. v. Dickerson, 118 P. 140, 29 Okl. 386.

Under Rev. Laws 1910, § 2852, the measure of damages for a carrier's delay in forwarding sample trunks of a salesman, is the value of their use during the delay, together with the loss of time occasioned. Loss of time and inability to make sales, consequent on delay in transportation, held within the carrier's contemplation when it received and checked a salesman's sample trunks as baggage, so as to entitle him to recover damages therefor. Such damages as proximately flow from the breach of contract of carriage of baggage are recoverable. Kansas City, M. & O. Ry. Co. v. Fugatt, 47 Okl. 727, 150 P. 669, L. R. A. 1916A, 545.

In an action against a railroad company for damages for delay in delivering freight, plaintiff may recover such as naturally arise in the usual course from the breach, or such as may be reasonably contemplated at the time of the contract, and such as result from special circumstances communicated to a railroad company when the contract was made. Choctaw, O. & G. R. Co. v. Jacobs, 82 P. 502, 15 Okl. 493.

Under Rev. Laws 1910, § 2869, the detriment from a carrier's delay is deemed the depreciation during the delay in the intrinsic value of the shipment, and also in the market value, otherwise than by reason of the depreciation in intrinsic value, at place where the shipment should have been delivered. In a shipper's action for damages from unnecessary and unreasonable delay, only such damages as were contemplated or could reasonably be presumed to have been contemplated were recoverable. Peculiar circumstances held not contemplated by the carrier, if not communicated to it by the shipper. Missouri, K. & T. Ry. Co. v. Foote, 46 Okl. 578, 149 P. 223, Ann. Cas. 1917D, 173.

In action against carrier for negligent delay in delivery of machinery, the measure of damages in absence of special notice is its usual value during time

he has suffered from the unlawful taking, in the way of injury, depreciation, or otherwise, as may be proved.78

The measure of damages for the detention of cattle of which plaintiff is entitled to possession under a chattel mortgage is interest on the value of the cattle during their detention, where such value does not exceed the debt."

The measure of damages for conversion is ordinarily the fair market value at the time and place of conversion, with lawful interest thereon, and fair compensation for expenses in pursuit of the property; but the owner can elect to take the highest fair market

of delay, and reasonable expense of effort to obtain delivery. Atchison, T. & S. F. Ry. Co. v. Sun Drilling Co. (Okl.) 165 P. 1133.

Under Rev. Laws 1910, § 2869, measure of damages for delay in transit without shipper's communication of unusual circumstances of shipment is depreciation of merchandise at market value at place of delivery between delivery and when it should have been delivered. In action for delayed carriage of merchandise, damages occurring after its receipt by consignee, because of fact that merchandise had to be carried over to another season, are not recoverable. Wichita Falls & N. W. Ry. Co. v. D. Cawley Co. (Okl.) 172 P. 70. Passengers. A recovery of $300 for physical pain and distress suffered by a female passenger caused to alight from a train at a flag switch not her destination, and left alone in the dark half mile from any house, held not excessive. St. Louis & S. F. Ry. Co. v. Henry, 46 Okl, 526, 149 P. 132.

Verdict of $750 awarded a passenger voluntarily ejected, while suffering with rheumatism and other infirmities, and who was compelled to wait a day for the next train, in view of the humiliation, etc., was not excessive. Dickinson v. Bryant (Okl.) 172 P. 432.

A railroad company is liable for the proximate damages from negligently carrying a passenger beyond her destination. Where illness and impaired health contracted from exposure in walking back to the station are the prox imate consequence of a passenger's being wrongfully carried beyond her destination, they are proper elements of damage. A verdict for $500 for impairment of plaintiff's health from exposure due to being carried beyond her destination held not excessive, though the evidence as to the state of her health was not altogether satisfactory. St. Louis & S. F. R. Co. v. Davis, 132 P. 337, 37 Okl. 340.

Where a carrier's train auditor wrongfully procured plaintiff's arrest for refusing to pay fare, except with a nontransferable ticket issued to another, and the officer handcuffed plaintiff and took him to the station house under a false charge of disorderly conduct, until released on bail, a verdict allowing him $625 was not excessive. Chicago, R. I. & P. Ry. Co. v. Radford, 129 P. 834, 36 Okl. 657.

78 Dodson v. Cooper, 15 P. 200, 37 Kan. 346.

79 Chattanooga State Bank of Chattanooga v. Citizens' State Bank of Law. ton, 39 Okl. 225, 134 P. 954.