and fraudulent representations, and so as to the other persons on whose claims the plaintiff sought to recover. If the jury believed from the evidence that the defendant was guilty of the fraudulent and false representations alleged, and that the purchase of stock had been made in reliance thereon, then the defendant was liable to respond in such damages as naturally and proximately resulted from the fraud. He was bound to make good the loss sustained, such as the moneys the plaintiff had paid out and interest, and any other outlay legitimately attributable to defendant's fraudulent conduct; but this liability did not include the expected fruits of an unrealized speculation. The reasonable market value, if the property had been as represcnted, afforded, therefore, no proper element of recovery. Nor had the contract price the bearing given to it by the court. What the plaintiff paid for the stock was properly put in evidence, not as the basis of the application of the rule in relation to the difference between the contract price and the market or actual value, but as establishing the loss he had sustained in that particular. If the stock had a value in fact, that would necessarily be applied in reduction of the damages. "The damage to be recovered must always be the natural and proximate consequence of the act complained of," says Mr. Greenleaf (Vol. 2, Sec. 256); and "the test is," adds Chief Justice BEASLEY, in Crater v. Binninger, 33 N. J. Law, 513, "that those results are proximate which the wrongdoer, from his position, must have contemplated as the probable consequence of his fraud or breach of contract," In that case the plaintiff had been induced by the deceit of the defendant to enter into an oil speculation, and the defendant was held responsible for the moneys put into the scheme by the plaintiff in the ordinary course of the business, which moneys were lost, less the value of the interest which the plaintiff retained in the property held by those associated in the speculation. And see Horne v. Walton, 117 Ill. 130, 141, 7 N. E. Rep. 100, 103; Slingerland v. Bennett, 66 N. Y. 611; Schwabacker v. Riddle, 84 Ill. 517; Fitzsimmons v. Chapman, 37 Mich. 139. We regard the instructions of the court upon this subject as so erroneous and misleading as to require a reversal of the judgment. The five causes of action covered the purchase of 9,525 shares of stock, for which $16,050 in the aggregate had been paid. The plaintiff did not withdraw either of his five counts, for request the court to direct the jury to distinguish between them. The verdict was a general one for $8,140, and, while it may be quite probable that the jury did in fact, as counsel for defendant in error contends, award to the plaintiff under his first cause of action the sum he had paid for the shares he had purchased himself, and interest, we can not hold this as matter of law to have been so, nor can we determine what influence the erroneous advice of the learned judge may have had upon the deliberations of the jury. Other errors are assigned which we think it would subserve no useful purpose to review. They involve rulings the exceptions to which were not so clearly saved as might have been wished had the disposal of this case turned upon them, and which will not probably, in the care used upon another trial, be repeated precisely as now presented. For the error indicated the judgment is reversed, and the cause remanded, with a direction to grant a new trial. 1. Exemplary damages and counsel fees allowed against agent obtaining possession of principal's goods and converting them upon false representations. Peckham Iron Co. v. Harper, 41 Oh. St. 100. 2. In wilful trespass no allowance for expenses. Patchen v. Keeley, 19 Nev. 404; 14 Pac. 347. 3. Injuries to a mine, as such, must be specially declared for. Id. 4. Measure of damages is dependent, more or less, on the mood and conduct of defendant. Cheesman v. Shreeve, 40 Fed. 788. 5. Interest upon the cost of a silver mill may be taken as the equivalent of rental value. New York Co. v. Fraser, 130 U. S. 611. 1 WASHINGTON NATURAL GAS Co. v. JOHNSON ET AL. (123 Pennsylvania State, 576; 16 Atlantic, 799. Supreme Court, 1889.) Assignment of lease after covenant broken. The assignee of a lease containing covenant to commence a well within a time stated, is not liable for the breach when he took his assignment after such time had elapsed. 1 Payment conditioned on striking gas. When a lease provided for the sinking of a well within a certain time, and the payment of a certain sum within a certain period after the completion of the well, provided gas was found: Held, that the breach was complete by failure to sink the well-but without ruling on the measure of damages. Creditor can not retain conditional payment and avoid the condition. If, pending the adjustment of a disputed liability, the debtor transmit money to his creditor as a payment in full of the demand, the creditor may not receive and retain the money as a credit upon a larger sum claimed by him, without discharging the debtor as to the whole. Error to Court of Common Pleas, Washington County. Action by M. J. Johnson and others against the Washington Natural Gas Company to recover $800 as the first year's rental for "the second well," in an oil and gas lease which provided "that, if gas is obtained in sufficient quantities, and utilized, the consideration in full to the" lessors "shall be $800 for each and every well drilled on the premises herein described, per annum, payable within sixty days after completion of such well, and thereafter, yearly in advance." Defendants bring error. G. D. PACKER and J. I. BROWNSON, JR., for plaintiff in error. L. MCCARRELL, R. W. IRWIN, E. E. CRUMRINE, and BOYD CRUMRINE, for defendants in error. WILLIAMS, J. This action is brought to recover for a breach of cove1 Ray v. Hodge,15 M. R. 371. nant contained in an oil lease dated August 5, 1885. By the terms of the lease, Guffy & Co., the lessees, acquired the exclusive right to drill and operate wells for oil and gas on about seventy-five acres of land for the term of twenty years. In consideration of this grant, they undertook to commence operations on the premises, and complete one well within six months from the date of the lease. They were also to commence a second well four months after the time for the completion of well No. 1. The royalty to be paid was fixed by the terms of the lease at one-fourth of all oil produced, if oil was found, and $800 per annum for each gas well operated, if gas was found in sufficient quantities to be utilized. The lessees took possession, and drilled one well in accordance with their covenant, which produced gas in sufficient quantities to be utilized. Three months before the time for putting down the second well, Guffy & Co. assigned the lease to C. D. Robbins, who held it from the 18th March, 1886, till the 20th January, 1887, and then assigned to the Washington Natural Gas Company. The second well should have been drilled, allowing three months to be a reasonable time in which to complete it, during the time when Robbins was the holder of the lease. The action, however, is against the assignee of Robbins, whose title was acquired some two months after the time when the well should have been completed, and at least five months after it should have been begun. The liability of the assignee was brought to the attention of the court by the sixth point submitted on the part of the defendant below, as follows: "It being a conceded fact that a reasonable time for drilling said second well had elapsed before defendant became assignee of the lease, the defendant can not be held liable for a failure to drill said well." This point was refused. The seventh point asked the further instruction that, "it being shown by the plaintiffs themselves that the covenant in the lease to commence the second well * * broken before the defendant acquired any interest in the lease, the proper remedy for such breach was an action against the original lessee, or the holders of the lease at the time of the breach." This was also refused and the learned * * * * was judge told the jury in his general charge that the breach of the covenant to drill a second well was not complete until the end of sixty days after the well should have been finished, because that was the time when the rent for the second well would fall due. "The commencement of the breach," said the learned judge to the jury, "was the failure to begin a second well on or before October, 1886, and the consummation was in not paying the eight hundred dollars when it ought to have been paid had a paying well been struck." The answers to the points and the foregoing instructions are assigned for error. The covenant sued on is as follows: "And it is further agreed the second well shall be commenced four months after May, 1886, the time stated for the completion of well No. 1." The plaintiffs allege a breach of this covenant, and state their cause of action to be that the defendant "has failed to commence a second well upon said leased premises within the time mentioned in said lease; to-wit, within four months from May 1, 1886, or at any other time." The instruction of the learned judge that a covenant to commence a well at a fixed time was only partly broken by a failure to commence it is not in harmony with the plaintiffs' claim, as stated in their narr., nor is it justified by the terms of the covenant. If the well had been drilled at the proper time, the covenant would have been fully performed, though neither gas nor oil had been found, and in that event no rent would have been demandable. The duty to pay rent for the second well as for the first one was conditioned upon actual production, and it ceased when the production ceased, or when the quantity of gas was too small to be utilized. The object of the covenant was to secure the development of the lessors' land by the putting down of two wells upon it for which rent was to be paid if the wells. were successful. The breach was complete when the lessee failed to drill as he had agreed. Loss of rents and profits might or might not follow, depending on the productiveness of the field. This subject might have been considered by the jury in fixing the damages after the plaintiffs' right to recover was settled, but had no relation whatever to the question on which the liability of the defendant depended. |