discovered that the indorsement was forged. It was held that the amount could be recovered immediately in an action against both partners. "We think the principle," said Parker, C. J., "that when by means of a felony one has been deprived of his property, the civil remedy is merged in the felony, if existing in full force in this country in the manner laid down in some of the English authorities, does not apply to this action which is not founded upon felony, but upon a common contract for the loan of money in which the lender has been deceived by the borrower and deprived of the security upon which the loan was assented to."

Wheeler v. Patterson, 1 N. H. 88, holds that an action on the case will not lie against the moderator of a town meeting for rejecting the vote of a qualified elector, without proof of malice or improper motives. In Sherburne v. Shaw, Id. 157, the same court held that a memorandum of an agreement which did not disclose the terms of the contract and the parties thereto, was not sufficient under the statute of frauds. In a recent decision of the Supreme Court of the United States, published in full in our present issue, this case is referred to by Mr. Justice Miller as having the "most weight in informing our judgment, because it is an authoritative construction of the statute of the State where this contract was made, and where the land is situated to which the contract relates, made by the highest court of that State sixty years ago and never overruled "

Wightman v. Coates, 15 Mass. 1, was an action for breach of promise of marriage, and there being some argument on the point that no such action lay in this country, the chief justice says: "This is not a new doctrine." He adds that several suits of a similar character had already been before him, and recollects more than one while he was at the bar. "Indeed," he concludes, "there is no country in which the relative situation of the sexes and their joint influence on society would render sach a principle of jurisprudence more useful or necessary."

Bridge v Hubbard, 15 Mass. 96, holds that where a security is originally void for usury another security substituted therefor is still affected by the original usury. In Dunham v. Gould, 16 Johns. 367, it is held that where two persons exchange notes for the purpose

of raising money at an interest exceeding the rate allowed by law, A giving his note to B, and receiving B's note in return, together with a commission greater than the legal interest on the note of A, the transaction is but a device to evade the statute, and B's note is void. In this case, Chancellor Kent gives a lengthy historical review of the subject of usury laws.

"If we look back upon history we shail find that there is scarcely any people, ancient or modern, that have not had usury laws. I believe there is not a nation in Europe at this day without them. In ancient Rome, according to Tacitus, usury was discouraged in the earlier period of the republic by the twelve tables which reduced interest to one per cent. It was afterwards lowered to one-half per cent., and finally abolished by the clamors of the people. It was revived in the ages of commerce and luxury, but placed under necessary restrictions. Four or six per cent. was the ordinary interest, eight per cent was allowed for the convenience of commerce, and twelve per cent. might be taken for maratime hazards by the laws of Justinian. * But it is not only the civilized and commercial nations of modern Europe and the sage lawgivers of ancient Rome that have regulated the interest of money. It will be deemed a little singular that the same voice against usury should have been raised in the laws of China, in the Hindoo institutes of Menu, in the Koran of Mahomet, and, perhaps, we may say, in the laws of all nations that we know of, whether Greek or barbarian."

After noticing at considerable length the arguments against the policy of such laws, and the reasons which have actuated their enactment, he concludes:

"The statute of usury is constantly interposing its warning voice between the creditor and the debtor, even in their most secret and dangerous negotiations, and teaches a lesson of moderation to the one and offers its protecting arm to the other. I am not willing to withdraw such a sentinel. I have been called to witness, in the course of my official life, too many victims to the weaknesses and to the inflamed passions of men. All sudden and extreme reforms are unwise. We ought not to stretch or to amputate in order to make our institntions fit exactly to any theory. It is better to follow the course and order of Providence and suffer our general system of law, like our habits, to accommodate itself slowly to our necessities, and to vary only with the gradual and almost imperceptible progress of time and experience."

In Seidenbender v Charles, 4 S. & R. 151, a scheme for the sale of a tract of land, in lots of unequal value, to be distributed among the purchasers by chance, by means of tickets or numbers bought at a fixed price greatly exceeding that of a majority of the lots, was held to be within the law prohibiting lotteries, although acaccording to the scheme there were no blanks. Property either real or personal, it was said, may be divided by lot without violating the law, provided the parties have a previous interest in the property divided, but not other

"The term 'sound and disposing mind and memory,' so commonly used on this subject, stands opposed not only to idiocy and lunacy, but to all derangement of mind, occasioned by melancholy, grief, sorrow, misfortune, sickness or disease. Every discomposure of the mind, by these causes, will not render one incapapable of making a will; it must be such a disclosure, such a derangement, as deprives him of the rational faculties common to man. 'Sound' signifies whole, unbroken, unimpaired, unshattered by disease or otherwise; a 'disposing mind and memory' is a mind and memory which have the capacity of recollecting, discerning and feeling the relations, connections and obligations of family and blood. Though it has been sometimes said, as has been stated from the books, that if one count ten, tell his name, say the day of the week, or even ask for food, it is a sufficient evidence of a disposing mind, yet such sayings, though they show wills are not lightly to be set aside, can and ought to have but little weight."

The definition of "sound," in the above abstract was criticised in Sloan v. Maxwell, 2 Gr. Ch. 563, where it was said that if that be its meaning "a will can only be made in the spring, or at the latest, in the summer, never in the autumn of life.' Miller v. Miller, 3 S. & R. 266, holds that a person has a right, by fair argument and persuasion to induce another to make a will, and even to make it in his own favor. In Miller v. Bates, 3 S. & R. 490, a person who had not been heard from for fourteen years and nine months was presumed by the court to be dead.

MASTER AND SERVANT- ABANDONMENT OF CONTRACT.

LEOPOLD v. SALKEY.

Supreme Court of Illinois.

[[Filed at Ottawa, January 25, 1879.]

A, a salesman, contracted with B, a clothing manufacturer, to work for him for a term of three years at a stated salary. Shortly after A entered upon his work, he was arrested and put in jail for two weeks during the busiest season of B. Held, that the arrest of A, though without his fault and his failure to work, necessitating the employment of another in his place, was an abandonment of the contract, and precluded him from recovering damages for B's refusal to take him back.

WALKER, J., delivered the opinion of the court: This was an action of appellee against appellants upon a written contract under seal, whereby the former agreed to render personal services for the latter during a stipulated term for a price agreed to be paid by the latter.

By the terms of the contract appellee agreed to enter the employ of appellants as superintendent and manager of the manufacturing department of appellants (they being engaged in the manufacturing and selling of boys, youths and children's clothing), in connection with and under the direction of Asher F. Leopold, and, whenever required by appellants' firm, or either member thereof, to assist in the purchase and sale of materials and goods manufactured by the firm, in such manner and at such times as the firm should direct. Appellee also agreed that he would continue in the employ of the firm for a period of three years from the first day of December, 1874, at which time his services were to commence; that during said term he would devote himself entirely to the business of the firm, in the manner as agreed upon, giving his whole time, attention and skill thereto, and at all times work for the best interests of appellants. Appellants, as a compensation therefor, agreed to pay appellee the sum of $3,000 per annum in sums of $250 per month, at the expiration of each month.

Appellee commenced work under the contract on the 1st of December, 1874, and continued to render services thereunder until the 12th of January, 1875, when he was arrested by a United States marshal under an order of the District Court of the United States for the Northern District of this State, and put in jail. He remained in jail until the 25th of the same month, when he was released on bail. Upon being released he returned to appellants' establishment to resume work under the contract, but they having appointed another foreman in his place whilst he was in jail, refused to receive him again in their employ.

Appellee has been paid for all the services he actually rendered, and the present suit is only to recover damages for appellants' alleged breach of contract in not continuing him in their employ. The judgment below was in favor of appellee for $500.

The covenants of appellee clearly constitute but one single and entire undertaking; each goes to the whole consideration. The covenant of appellants to pay $3,000 per annum, although to be paid in monthly payments, was not for a part, but for the whole of the term. The covenant by appellee that he would devote himself entirely to the business of the firm, giving his whole time, attention and skill thereto, goes to the root of the whole matter; and when the situation of the parties, as disclosed by the evidence, is taken into consideration, it is manifest that the failure by appellee to perform his contract from the 12th to the 25th of January inclusive, would render the performance of the rest of the contract by appellee a thing different in substance from that which appellants stipulated for. Appellants were engaged in an extensive business in the manufacturing and selling of boys, youths and children's clothing. The month of

January was their busiest season of the year. In that month they manufactured their goods for the spring trade; and in the latter part of it they sent out their traveling men with samples. When appellee was arrested there were in appellants' employ fourteen cutters and three trimmers. It was his duty as superintendent and manager to superintend these, lay out their work, direct its performance, etc; and also to inspect and receive work from the tailors, besides discharging various other duties incident to the position he assumed. It required peculiar skill, knowledge and great promptness and fidelity. To delay the manufacturing in that month would obviously work immediate pecuniary loss to some extent, and must necessarily materially endanger the future prospects of the business. Rival manufacturers would be enabled to forestall appellants in the trade of that year; and being once forestalled, they might not, during the term, recover their former trade. Besides, the character and quality of work have much to do in building up and establishing a prosperous permanent trade in manufactured articles, and great risk in that respect would be incurred by the mere change of superintendents and managers. Nor is it to be assumed that a person of competent experience, skill, energy and fidelity could be got without a moment's warning to fill such a position, and indeed to stay from day to day during such a season in the business, for a compensation approaching in any reasonable degree a pro rata part of that which he would be willing to accept for his services for a term of three years.

In our opinion, therefore, the failure of appellee to perform the services he had covenanted to perform, from the 12th to the 25th of January, 1875, was a substantial breach of his covenant.

Appellee has averred in his declaration, ability, readiness and offers to perform, and his undertaking being an entire one, it was incumbent on him to make the averment and support it by proof. Badgley v. Heald, 4 Gilm. 64; Swanzey v. Moore, 22 Ill. 63. Inasmuch, however, as appellants covenanted to pay for the services monthly, there could doubtless have been a recovery on the contract for services rendered for the month of December, 1874, after the expiration of that month, without any allegation further than that of performance of the contract by appellee during that time, but since that has been paid, and appellee seeks a recovery only for a breach of contract arising from his not being allowed to perform his part of the contract during the subsequent month, he is bound to aver and show readiness, ability and offers to perform the contract as to the subsequent time. This is held to be the rule in Cunningham v. Morrell, 10 Johns. 203, where Kent, C. J., carefully examines the authorities, and the court overrules its previous decisions in Sears v. Fowler, and Havens v. Bush, 2 Johns. 272, 387. This is approved in Tompkins v. Elliot, 5 Wend. 496; Bean v. Atwater, 4 Conn. 3, and McLure v. Rush, 9 Dana 64.

It may be conceded that appellee was put in jail without his fault, yet this would not relieve him of his covenant to give his whole time, attention and

skill to appellants' business. It is not claimed to have been through appellants' fault that he was put in jail, and there is no reason, therefore, why appellants' business should suffer in consequence of it. He might have guarded against this by an exception in his covenant, but he did not do so. The rule is, it is a good defense to an action on a covenant in a contract that the obligation to perform the act required was dependent upon some other thing, which the other party was to do and has failed to do. And the defense is good, although the omission of the other party to do the thing required of him was produced by causes which he could neither foresee nor control. 2 Parsons on Contracts (6th ed.), 674; Chitty on Contracts (11 Amer. ed.) 1086.

There is a class of cases where a party contracting to render personal services after part performance becomes disabled by inevitable casualty, and is thereby prevented from fully completing his contract, has been held entitled to recover for the services actually rendered upon a quantum meruit. Fenton v. Clark, 11 Vt. 557; Hubbard v. Belden, 27 Vt. 645; Dickey v. Linscott, 20 Me. 453; Wolfe v. Howes, 20 N. Y. 197. But these furnish no warrant for the position that the laborer can, in such cases, recover upon the contract for a failure to pay for future services which he has been prevented from performing. On the contrary, they proceed upon the theory that the contract is discharged by the inevitable casualty, and therefore allow the party to recover simply for what he has earned. Another class of cases may be found where a party attempting to rescind a contract on account of the default of the opposite party is held precluded by his acceptances of the property, labor, etc., of the opposite party.

But such cases can have no application here. In those cases it is required that it shall be in the power of the party to abandon the material or product of labor received and rescind the contract in toto, without an abandonment of his own property. And his failure to thus abandon them is construed as an acceptance of performance. See Eldridge v. Rowe, 2 Gilm. 91.

Appellee's counsel cited Cuckson v. Staves, 1 Ellis & Ellis, 238 (102 Eng. Common Law, 248), and Selby v. Hutchinson, 4 Gilm. 332, in support of the position he assumes, that appellant's remedy for appellee's failure to keep and perform his covenants, was by an action for damages, and that he had no right to treat the contract as abandoned by appellee. The first case in our opinion is totally inapplicable to the facts here. There the plaintiff by an agreement in writing, agreed to serve the defendant as a brewer for the term of ten years for a stipulated compensation. He entered upon the performance of the contract, and some years afterwards fell ill, and was unable to attend to business from Christmas, 1857, until July, 1858. He returned to defendant's service when restored, and the defendant employed and paid him as before. Defendant's counsel conceded at the trial, that the contract was not abandoned, and the controversy was whether plaintiff should receive full wages during the time he was sick. What was said has

reference only to that state of case. Here appellee never was received into appellants' service after he was in jail. He has done nothing for appellants since that time, and appellants have refused to receive him again into their employ, because they allege his default justified them in treating the contract as abandoned.

In the other case, assumpsit was brought by Hutchinson as administrator of one Teed, for services rendered by Teed in his life-time in building a mill for Selby. The work was done under a special contract, and Teed died before the contract was fully performed on his part. His administrator offered to complete the contract, but Selby refused to allow this unless he would take out certain defective work and put other in its place. This the administrator refused to do. It was attempted to show upon the trial that Selby had not complied with his contract in not procuring certain material, and having certain work done as promptly as it was needed, and as required by the terms of the contract. On the other side, there was evidence showing that Selby's delay was through Teed's default in performing his part of the contract, and that the work to be done and materials furnished by Selby, were done and furnished by the time Teed needed them. Teed never undertook to declare the contract abandoned, but, on the contrary, proceeded with his work as if he regarded the contract as still subsisting. It was held that, even if there had been cause of forfeiture, Teed waived it, and that he, and not Selby, was in default. It will thus be seen the case varies materially, in the questions presented for consideration, from the present.

The general remark made by the court, in discussing the evidence which the counsel quote, that "in order to justify an abandonment of the contract, and the proper remedy growing out of it, the failure of the opposite party must be a total one, the object of the contract must have been defeated or rendered unattainable by his misconduct or default," is not understood as laying down | the rule that, to justify an abandonment of a contract, the opposite party must have failed to discharge every obligation imposed on him, but simply that, matters which do not go to the substance of the contract, and the failure to perform which would not render the performance of the rest a thing different in substance from what was contracted for, do not authorize an abandonment of the contract; for when the failure to perform the contract is in respect of matters which would render the performance of the rest a thing different in substance from what was contracted for, so far as we are advised, the authorities all agree that the party not in default may abandon the contract. It is said, in Wood's Law of Master and Servant, p. 233, sec. 120, “Sickness, for a lengthened period in one case two weeks-releases both parties from the contract. The master is not bound to wait unreasonably for the restoration of his servant's health, and his necessities may well be regarded as the measure of what is reasonable." See also, Hubbard v. Belden, supra. In Poussard v. Speirs, L. R., 1 Q. B. Div. 410, 3 Cent. L. J. 468,

this rule is, in substance, recognized and applied by the court.

When neither party is at fault, the absence of the servant from the master or employer, without his consent, by whatever cause occasioned, for an unreasonable length of time, we are of opinion authorizes the master to treat the contract as abandoned; and what, in such case, is an unreasonable length of time, depends upon the nature and the necessities of the business in which the servant is employed.

Under the facts herein proved, a much shorter time than that during which appellee was confined in jail might, in our opinion, be regarded as unreasonable. Under different circumstances absence for a much greater length of time might furnish no cause for abandonment-the question always being, does the delay so affect the interests of the master, that the performance of the residue of the contract, by the servant, would be a thing different in substance from what the master contracted for.

There was evidence that after appellee was in jail, and whilst he was there, appellants agreed that if he got out and returned to his duties within a certain time, they would receive him into their employ. What that time was is controverted. Appellants claim that it was until the following Monday-appellee that it was two or three weeks. He was not out by the following Monday, but was out within two weeks, being released on the thirteenth day after his incarceration in jail. Although we think appellants' version, sustained as it is by appellee's admission that the season in appellants' business was such that they could not do without him-at the most for a greater length of time than two days-is more likely the correct one, we do not deem it of vital moment which is the truth. This promise did not amount to a contract. There was no mutuality in it, and no consideration to support it. It was a mere offer, which might be withdrawn at any time before it was acted on. It did not amount to an estoppel, because appellee did no act placing himself in a worse condition than he would otherwise have been in, on the faith of the promise. Had appellee been received again into appellants' employ, the promise and the act of receiving him would have been sufficient evidence of a waiver of a right to declare a forfeiture for the previous default. But not being received, and doing nothing on the faith of the promise to make his condition different or worse than it would have been had the promise not been made, it might be withdrawn at any time. It was a mere indication of a willingness to extend an indulgence on the part of appellee which, like any other offered favor, might be withdrawn at pleasure, when no substantial right had become vested on the faith of it. See Bigelow on Estoppel (1st ed.), p. 560, § 4. When appellants refused to receive appellee into their employ upon his return to their place of business, he was fully and sufficiently notified of their election to treat the contract as abandoned, and he needed no other or different notice.

Inasmuch as the rulings and judgment of the court below are not in harmony with the views

herein expressed, the judgment is reversed and the cause remanded.

Reversed and remanded.

NOTE.-The case here reported at first blush seems to be contrary in principle to the case of K-v. Raschen, recently decided in the Exchequer Division of the English High Court of Justice, reported in 38 L. T. (N. S.) 38, and made the subject of a note in 6 Cent. L. J. 262. A careful consideration of the two cases however will reveal their distinguishing principle and show that they are thoroughly harmonious. In each case, the plaintiff was employed at a stated salary for a stipulated length of time. In each case, the plaintiff, served under the contract for a short time, and then was incapacitated from work, in the English case by reason of illness, and in the Illinois case by reason of imprisonment, which it was not in his power to prevent. In the English case, suit was brought by the plaintiff for wages due on the contract from the beginning of the commencement of the service until his illness, and the court then very properly held that he could recover, as "prima facie illness is to be attributed to the act of God, and we are not justified in going back for any length of time and entering into an investigation as to what may have been the cause of it." The suit, in the case reported here, however, was brought by plaintiff not to recover back wages due, but for damages on the contract resulting from the defendants' refusal to take him back.

The principle enunciated in the English case is plainly recognized in the one here reported, although the former seems to have been overlooked in the decision of the court. L. S. M., JR.

IMPLIED WARRANTY

DISTINCTION BETWEEN LIABILITY OF DEALERS AND

MANUFACTURERS.

WILSON V. DUNVILLE.

Irish High Court of Justice, Exchequer Division, February 17, 1879.

The defendant, a manufacturer of whisky, was in the habit of selling to the plaintiff refuse grains (produced in the course of the manufacture of whisky), as food for cattle, and the defendant knew that the grains were employed by the plaintiff for this purpose. A fire occurred on the premises of the defendant, which had the effect of causing the grains to become, without the knowledge of the defendant, mixed with a deleterious substance. The plaintiff purchased the grains so vitiated, and his cattle, in consequence of being fed therewith, died. Held, 1. That the sale to the plaintiff after the fire had occurred was upon the same terms as those previous to that occurrence. 2. That there was no implied warranty on the part of the defendant that the grains sold by him were fit for the purpose to which they were applied, inasmuch as the liability of the defendant was that of a dealer and not of a manufacturer, and that where a dealer contracts to supply a known and defined article, although it be stated by the buyer that such article is required for a particular purpose, if the known and defined thing be supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.

Motion on behalf of the defendants, that a verdict entered for the plaintiff, in pursuance of the finding of the jury at the trial of the case at Belfast Summer Assizes, should be changed into a verdict

for the defendants, inasmuch as the plaintiff had purchased the article sold by the defendants, grains for feeding cattle, at the plaintiff's own risk, and without any warranty on the part of the defendants that the grains were fit for the purpose to which they were applied. The circums ances are sufficiently explained in the judgment.

Porter, Q. C., Monroe, Q. C,, and Weir, for the defendants, cited Jones v. Bright, 5 Bing. 49; Mody v. Gregson, L. R. 4 Ex. 49; Brown v. Edgington, 2 C. B. 279; Laing v. Fidgeon, 4 Camp. 169.

W. Andrews, Q. C., and Bruce, for the plaintiff, cited Turner v. Mucklow, 8 Jur. N. S. 870; Nichols v. Godts, 10 Exch. 191; Jones v. Just, L. R. 3. Q. B. 197; Burnley v. Bollett, 16 M. & W. 644; Ward v. Hobbs, 2 Q. B. D 331, 6 Cent. L. J. 107; on appeal, 3 Q. B. D. 150, 8 Cent. L. J. 5, and Chitty on Contracts, ed. 1871, p. 420, 599.

PALLES, C. B.

Cur. adv. vult.

This action, so far as is material to the questions before us is for breach of an alleged warranty that certain grains sold by the defendants to the plaintiff were fit for cattle feeding. At the trial, before Mr. Justice Lawson, at Belfast, it appeared that the defendants, who were extensive distillers, were in the habit of selling "distillery grains," which consist of what remains of the corn used in the manufacture of whisky, after it has been subjected to the processes resorted to in the course of that manufacture. The sales of these grains were conducted under printed rules, which classified the customers. The first class was that of "special customers," and was composed of persons who guaranteed to take a given quantity of grains during each week of the season. It was the practice, when the demand for grains exceeded the supply, to give to persons of this class a preference in deliveries over ordinary customers. The special customers were entitled to receive every week special tickets for the quantity of grains which they had guaranteed to take. The delivery to each of these special customers was made according to his number in delivery lists, of which there were three for each delivery day, each list relating to a delivery commencing at a particular hour.

The plaintiff had been a special customer under these rules for several years. For the season of 1877-78 he was on the 10 o'clock deliverv list of each Friday for twenty bushels per week. He was duly supplied with grains under this arrangement until the 10th of March. The course of delivery appeared to be that the servant sent by the plaintiff for the grains, went to the defendants' office, and there received and paid for the special ticket. This ticket he handed in at a ticket box, as soon as the plaintiff's name was reached in the calling of the delivery list. The grains, which there had been no previous opportunity of inspecting, were then delivered into the plaintiff's cart through a turnstile.

Upon the 13th of March a fire occurred at the defendants' distilleries. The plaintiff did not send for grains on the Friday next after the fire, because (as he stated) he heard that there were none ready