is: -should' plaintiff recOvel' i for .the injuries sustalned? :"The:te" certain elements which the: jury are to take into.Mllsidl:'rationindeterrniningtheamount the plaintiff, injured under such, ci.reumstaiIces, should recover, if he has satisfied the jury that 'his injury'was il8ustained by the negligence of a'perSon who owed him a legal drity ,altd ithey are all founded upon compensation. Nothing else:; :ge"l'1tlemen, hut compensation for the injuries sustained is the plaintiff entitled totecover. Of coUrse that, to Borna' extent, is left to the souIid jUdgment and discretion Of the jury, basetl upon all the evidence in the case, and the facts disclosed during the progress of the trial. Of course theplaiIitiff is entitled tocornpensation for loss of time on account Of the il'ljuries sustained. Be is fhrther entitled to compensation for pain tind'suffering. Now that mUBt be left entirely to the jury. Whatwo'Uld compensate a person for pain and suffering? You cannot measureitrindOllarsandcents; at least it must be left to the sound discretion(;)f the jury, and their sound judgment, bearing in mind all the time that ':itis a compensation, and not what may be called "smart money," which' he' is entitled to receive. He is also entitled to compensation for any temporary disability, temporary injury, or permanent injury. and the testimony here tends to show that he at least never will regain his eye-sight; also, what impairment there may be.to his bodily strength, for the evidehce here disCloses beyond any dispute that one leg is shorter than it 'was. He is not the same man that he was before the injury.. At the same time you must graduate, or at least measure, the damages on the theory of compensation only; that being left to your 80unddiscretion, gentlemen. It is for you to Sl\Y on the whole case, if you believe the plaintiff is entitled to a verdict, what amount will compensate him for the injury, bearing in mind that you are to dedde this case upon the strict legal rights of the parties and the cold facts which have been developed here in testimony, not upon sympathy for the plaintiff, who is in affliction. That is not an element to be taken into consideration by the jury, for jurors and courts would be less than human if they did not sympathize with a fellow-man in affiiction. You can take the case, gentlemen.
The jury returned a verdict for plaintiff for $8,800.
LATHAM 'lI. DAVIS.
(CiTCU«t Oourt, D. OoZorado. February 9, 189L)
Where a seller of personal property, by a contract which provides that the title shall remain in him until payment of the price, has received in part payment other goods, he cannot, on refusal of the purchaser to pay the balance, maintain replevin for the goods sola, without first returning the goods received in part paym.ent. In such an action defendant cannot allege counter-olaims for dama.ge for plaintiff's failure to perform the contract of sale.
R. D. Thompson, for plaintiff. Coos. Cavender, for defendant.
. HALLETT, J., ((Yf'ally.) September 28, 1889, plaintiff sold to defendant a and other materials, to be delivered on or before October 21st in the same year. Defendant agreed to pay therefor the sum of $2,763 in cash, and a press and other material then used by defendant at Leadville. The machinery was set up for use, and defendant delivered'to plaintiff that which was to be given in exchange for the other, but refused to make the cash payment, alleging that plaintiff did not comply with his contract. Thereupon plaintiff brought this action of replevin, claiming that the sale was conditional, and tha.t he still holds the title to the property. The contract of.sale, in so far as it relates to this controversy, is as follows: "H. H. Latham hereby agrees to sell, for the sum of $2,.763.00 cash, and second-hand machinery, as below. to C. C. Davis &, Co., of Leadville, Colo., the following printing material, to be delivered f. o. b. cars at Birmingham, Conn., & Chicago, Ills., on or before the 21st of October, 1889, warranted free from defective workmanship or material: One (1) 39x52 Whitlock, 2 revolution, frol,1t deli very, No. 0; 2 roller cylinder press, with steam fixtures complete; 2 sets. roller stocks; 2 roller moulds; wrenches; rubber blanket; Side-gauge feeder-stands; cutting attachment for press, and counting machine; ODe 36-inch champion power paper cutter; one (1) Stonemetz folding machine, to attach to press, with paster and trimmer, steam and overhead fixtures, (second.hand.) H. H. Latham agrees to furnish man to superintend setting up new machinery, and to superintend taking down and shipping old machinery; C. C. Davis & Co. to pay his railroad fare to and from Denver, and board him while in Leadville, and to pay all necessary expenses outside of man's time,-the above machinery to be furnished for $2,763.00 cash; and one (1) 33x50 Chicago Taylor drum cylinder press; one (1) 30-inch Gem lever paper cutter; and one (I)J. H. Hoole & CO. paging and numbering machine, with two (2) 'brass heads; and all steam and overhead fidures belonging to 8econd·hand machines, except one counter-shaft cone and 'pulley for cutting machine. Cash payment to be made as soon as machinery is up, in motion, and working satisfactory. If folding machine will not do the work on paper after a fair trial, H. H. Latham is to furnish one that will do so, free of all expense whatsoever to C. C. Davis & Co. Machines guarantied to be first class in every respect, and to do as good work as machines of same description and size of other first-class manufacture. It is further agreed that the title to said property shall remain in the seller until the purchase price has been fully paid; and, in case of any default in any of the terms of this tract, theBeller shall have the right to take immediate possession of said property; Upon the payment of the purchase price in cash, It. H. Latham agrees to execute and deli ver a good and sufficient bill of sale of the above-described property. " The agreement clearly supports the plaintiff's position, but the question is whether he can reclaim the property without returning the press and other materials which he received in part payment for it. By some courts it is held that under an agreemept of this kind the buyer forfeits all partial payments upon failure to complete the contract, and is bound to surrender the property on demand. It'leckv. Warner, 25 Kan. 492.
FEDERAL REPORTER, vol. 44.
The better rule, however, seems to be that in reclaiming the property the seller rescinds the contract of sale in so far as it has been executed, and is thereupon bound to restore to the buyer anything that he may have received in the way of payment. Hamilton v. 11lanvfacturing Co., 54 Ill. 371'; Hine v. Roberts, 48-00nn. 268; Preston v.'Whitney, 23 Mich. 260. This rule seems to he especially applicable to a case of this kind, in which property is given in exchange of the same general character as that purchased. Having obtained possession of defendant's old press and material at the time the new machinery was setup, if in this action plaintiff can take the new press without returning the other, defendant will have nothing with which to print his newspaper. The rula relates only to money and property given in payment for the property purchased, as to which the seller ought to put the buyer in the position he held when the contract' was made. It does not in any way relate to fulfillment of the contract, or damages for failure therein, and therefore all that is alleged by. defendant in his three answers he calls cOUnter-claims) liS damages for breach of the contract-as that the machinery was Ilot delivered in time; that at plaintiff's request he furnished some part of the materials used; that the machinery was not of the kind or capacity sold; and the like-are not within the rule. Such defenses are not admissible in this form of action. The question here is the right of possession, and whether it is in plaintiff or defendant. All other matters are to be settled in another form of action, which is adapted to the recovery of money. It is difficult to. conceive of a counter-claim in an action of replevin j but, if such pleading may be allowed in any case, thereisllothing to support it in this case. Under the contract, defendant mliy insist upon having his press and materials again as a condition to relinquishing that which he purchased; but this is not in the way of counter-claim, but a matter of defense simply. The.demurrer will be sustailled, and defendant will have leave to amend, so as to present the single matter of defellse, as indicated.
UNITED STATES v. HALL.
(D£Btrict Court, S. D. Georgia, W. D. November 21, 11100.)
Where a 8ubpaJna duces tecum has been issued to a witness, requiring him to produce a deed therein described, and he answers orally under oath. before the court that he had nosucll deed, and never had it, and it further appears that the deed he was required to produce was alleged to have been furnished him by the prisoner, if, on the trial of a traverse to the answer made by the respondent to the sUbprena duces tecum, the prisoner testified that he had furnished or delivered the respondent no such deed, his testimony would be in a matter material to the issue so' formed, and, if he testified falsely, not believing his testimony to be true, he wQuld be guilty of perjury.
Before the Jury are authorize4 to convict the defendant on a charge of perjury, they must bEl satisfied ·from the testimony of one witness, with corroborating circumstances, Or from the testimoiJy of more than one witness, that the -prisoner swore and testified falsely, not believing his testimony to be true.