Whether an instrument is under seal or not is a question for the
court upon inspection, but whether a mark or character shall be
held to be a seal depends upon the intention of the executant, as
shown by the paper.
When no legislative prohibition is shown, it is within the
chartered powers
Page 160 U. S. 515
of a railroad company to lease and maintain a summer hotel at
its seaside terminus, and such power is conferred on railroads in
Florida.
The authority of the President of such company to execute in the
name of the company a lease to acquire such hotel may be inferred
from the facts of his signing, sealing, and delivering the
instrument, and of the company's entering into possession under the
lease and exercising acts of ownership and control over the demised
premises, even if the minutes of the company fail to disclose such
authority expressly given.
The court adheres to the rule laid down in
Central
Transportation Co. v. Pullman's Car Co., 139 U. S.
24, that a contract of a corporation which is
ultra
vires in the proper sense is not voidable only, but wholly
void and of no legal effect; but it further holds that a
corporation may also enter into and engage in transactions which
are incidental or auxiliary to its main business, which may become
necessary, expedient, or profitable in the care and management of
the property which it is authorized to hold under the act by which
it is created.
Impossibility of performing a contract, arising after the making
of it, although without any fault on the part of the covenantor,
does not discharge him from his liability under it.
A lessee of a building who contracts in his lease to keep the
leased building insured for the benefit of the lessor during the
term at an agreed sum, and fails to do so, is liable to the lessor
for that amount, if the building is destroyed by fire during the
term.
There is no error in an instruction to the jury, where the
evidence is conflicting, that in coming to a conclusion they should
consider the testimony in the light of their own experience and
knowledge.
In the Circuit Court of the United States for the Northern
District of Florida, on the 4th day of December, 1889, Mary J.
Hooper, Henry H. Hooper, her husband, and William F. Porter, for
the use of said Mary J. Hooper, citizens of the State of Ohio,
brought an action against the Jacksonville, Mayport, Pablo Railway
& Navigation Company, a corporation of the State of Florida.
The plaintiffs' amended declaration set up causes of action arising
out of the covenants contained in a certain indenture of lease
between the parties. This lease, dated July 10, 1888, purported to
grant, for a term of two years, certain lots of land situated at a
place called "Burnside," in Duval County, Florida, whereon was
erected an hotel known as the "San Diego Hotel." In consideration
of this grant, the railroad company agreed to pay, in monthly
installments, a yearly rent of $800, and to keep the premises
insured in the sum of $6,000.
Page 160 U. S. 516
It was alleged that on November 28, 1889, during said term, and
while the railway company was in possession, the hotel and other
buildings were wholly destroyed by fire; that the defendant had
failed and neglected to have the same insured, and that there was
an arrearage of rent due amounting to the sum of $106.67. For the
amount of the loss occasioned by the absence of insurance, and for
the back rent, the action was brought.
The defendant denied that the railway company had duly executed
the instrument sued on; denied that Alexander Wallace, the
president of the company, and who had executed the lease as such
President, had any authority from the company so to do. The
defendant also alleged that such a lease, even if formally
executed, was
ultra vires; also, that the covenant to
insure was an impossible covenant, as shown by ineffectual efforts
to secure such insurance.
The case was tried in April, 1891, and resulted in a verdict and
judgment against the defendant in the sum of $6,798.70. On errors
assigned to certain rulings of the court and in the charge to the
jury, the case was brought to this Court.
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The nineteen assignments of error may be classified as follows:
those which raise questions as to the sufficiency of the proof of
the due execution by the defendant of the contract sued on; those
which deny the competency of the railroad company to enter into
such a contract; those which deal with the question whether the
defendant was relieved from liability on its covenant to insure by
reason of alleged impossibility to comply therewith; finally, those
alleging error in the admission of evidence, and in certain
portions of the charge -- particularly in respect to the measure of
damages.
Page 160 U. S. 517
We shall discuss these alleged errors in the order thus
mentioned.
The declaration was in covenant, and contained, as an attached
exhibit, what was alleged to be a certified copy of the contract
sued on, the final clause whereof was as follows:
"In witness whereof, the parties hereto have hereunto set their
hands and seals, this the day and year above written."
"Jacksonville, Mayport, Pablo Railway"
"and Navigation Company [Seal]"
"By Alex. Wallace,
President"
"Wm. F. Porter [Seal]"
"By H. H. Hooper, Jr.,
Att'y in Fact"
"H. H. Hooper [Seal]"
"Mary J. Hooper [Seal]"
The attesting clause was as follows:
"Signed, sealed, and delivered in the presence of us."
"H. H. Burkman"
"H. H. Bowne"
"
As to R. Co., H. H. Hooper"
"
and W. F. Porter"
"John Mulholland"
"Sam'l E. Duffy"
"
As to Mary J. Hooper"
The defendant demurred on several grounds, one of which was as
follows:
"That attached to the said declaration is a paper purporting to
be the contract which is the basis of this suit, which paper is
alleged to be a lease between the defendant company and the
plaintiffs, and which paper is referred to in each and every count
of said declaration, and asked and prayed and made a part of said
declaration, and each and every count of said declares in covenant,
and yet the same contains on the face thereof, and the face of the
paper made part thereof, that the said cause of action will not lie
because the said paper is
Page 160 U. S. 518
not under seal; that there is no seal of the defendant company
to said paper."
The theory of this demurrer appears to be that there should have
been an averment on the face of the instrument that the seal
attached, on behalf of the company, was its common or corporate
seal. However, there was an averment that the parties had set their
hands and seals to the paper, and the attesting clause alleged that
the railroad company had signed, sealed, and delivered in the
presence of two witnesses, who signed their names thereto. On
demurrer, this was plainly sufficient.
But it is urged in the third and fourth assignments that it was
error to permit to be put in evidence the certified copy of the
lease, as likewise the duplicate lease, because they were not shown
to be under the seal of the company, but appeared to be under the
private seal of Alexander Wallace, the president of the company.
But in the absence of evidence to the contrary, the scroll or
rectangle containing the word "Seal" will be deemed to be the
proper and common seal of the company. A seal is not necessarily of
any particular form or figure.
In
Pillow v.
Roberts, 13 How. 472, this Court said, through Mr.
Justice Grier, when discussing an objection that an instrument read
was improperly admitted in evidence because the seal of the circuit
court authenticating the acknowledgment was an impression stamped
on paper, and not "on wax, wafer, or any other adhesive or
tenacious substance," said:
"It is the seal which authenticates, and not the substance on
which it is impressed, and where the court can recognize its
identity, they should not be called upon to analyze the material
which exhibits it. In Arkansas, the presence of wax is not
necessary to give validity to a seal, and the fact that the public
officer in Wisconsin had not thought proper to use it was
sufficient to raise to presumption that such was the law or custom
in Wisconsin till the contrary was proved. It is time that such
objections to the validity of seals should cease. The court did not
err in overruling the objections to the deed offered by the
plaintiff."
Price v. Indseth, 106 U. S. 546, is
to the same effect.
Page 160 U. S. 519
Whether an instrument is under seal or not is a question for the
court upon inspection. Whether a mark or character shall be held to
be a seal depends upon the intention of the executant, as shown by
the paper.
Hacker's Appeal, 121 Penn.St.192;
Pillow v.
Roberts, ub. supra.
The defendant did not produce the original in order that it
might be compared in the particular objected to with the copy and
duplicate offered. The defendant's attorney, Mr. Buckman, was
called, and testified that he was one of the attesting witnesses to
the instrument offered, and that he, as a notary public, took the
acknowledgement thereto of Alexander Wallace; that he executed the
same for and in behalf of the company, and that the said lease was
the act and deed of the defendant company for the uses and purposes
therein expressed.
Whether, therefore, the instrument put in evidence was merely a
copy, in which event it would not be expected that a wax or stamped
seal of the company would appear upon it, but merely a scroll,
representing the original seal, or whether the so-called "copy" was
really the original paper, as certified by one of defendant's
witnesses, would not in our opinion be material. The presumption
would be, if the paper were a copy, that the original was duly
sealed, or, if it were the original, that the scroll was adopted
and used by the company as its seal for the purpose of executing
the contract in question.
As respects those portions of the objections that raised the
question as to the authority of the President to execute the
contract in question, there was, besides the presumption that would
arise out of the signing, sealing, and delivering of the
instrument, evidence that the company exercised acts of ownership
and control over the demised premises, took charge of them by their
superintendent, took an inventory of the property, rented the hotel
portion to a third party, received money rent therefor, gave
receipt therefor under the seal of the company, opened an hotel
account on their cashbook which showed receipts of rent from the
tenant and expenditures for moving the hotel and for making
improvements therein, and
Page 160 U. S. 520
there was evidence adduced by the defendant itself of efforts to
get the property insured in pursuance of their contract.
An exception was taken by the defendant to the action of the
court in permitting Mrs. Roberts, the company's tenant, to testify
to statements made to her by Alexander Wallace, the president of
the company, the ground of objection being that Wallace was dead at
the time of the trial. statements made by the president, if
relevant to the controversy, would be competent to affect the
company even if he were dead at the time of the trial. In the
present case, it was relevant to show that the witness, when about
to rent the hotel, was told by the president to go to Mr. Warriner,
the secretary of the company, to whom she paid one month's rent,
and who gave her a receipt therefor, with the corporate seal
attached. The witness was not a party to nor interested in the
suit, nor was the president or his executor or administrator. The
admissions made by the president subsequently in a casual
conversation as to his ineffectual efforts to get the hotel insured
could scarcely be regarded as relevant and competent to affect the
company. But the error, if such it were, in permitting such
statements to be received was rendered immaterial by the action of
the company in adducing affirmative evidence in its own behalf to
the very same effect -- namely the efforts made by the company and
its officers to procure insurance.
Complaint is made of the action of the court in rejecting the
offer of the defendant's bylaws for the purpose of showing want of
authority to make the lease sued on without the consent of the
stockholders or board of directors, and the accompanying offer of
the minutes, which did not disclose that any such authority had
been granted.
In considering what weight should be given to the error assigned
to the rejection of the bylaws, we have a right to advert to the
copy of them contained in the bill of exceptions. There we learn
that the powers conferred upon the president were in the following
terms:
"The president shall preside at all meetings of the board of
directors and of the company (of which he shall be president), and
shall have the general management and supervision of the
Page 160 U. S. 521
operation of the lines of road of said company and the general
business thereof, subject, however at all times to the control of
the board of directors. He shall, when so directed and empowered by
the board of directors, execute and sign for and on behalf of said
company all documents and writings authorized to be made and
executed for and on its behalf. He shall draw and issue all
warrants for the payment of moneys on the treasurer of said company
when so ordered by the board, and sign the same. He shall make an
annual report to said company of the condition thereof, with such
suggestions and recommendations as he may deem proper, and to said
board of directors whenever required by them, and shall do and
perform such other duties as are consistent with said office, and
others of a like nature pertaining thereto."
This bylaw appears to describe the powers and duties usually
possessed by presidents of railroad companies, and we are therefore
relieved from considering what would have been the effect of an
unusual restriction on the powers of such an officer and whether
those dealing with a railroad company would be obliged to take
notice of such unusual restriction.
The question, therefore, we have to consider is whether the
admission in evidence of the bylaw would have affected the result
reached by the court and jury in the case.
Assuming, for the present purposes of the discussion, that the
subject matter of the contract in question was within the
legitimate scope of the company's powers, we think the facts and
circumstances shown by the evidence disclose a case in which the
company would be bound, notwithstanding there was no proof that the
president was expressly authorized to make the contract by a
previous resolution of the board. The evidence was undisputed that
after the execution of the lease, the company took possession of
the demised premises, rented to a third party the hotel portion
thereof, and received and receipted for rent of the hotel.
The case in this particular resembles and falls within the
principle of
Eureka Co. v. Bailey
Co., 11 Wall. 488, where the binding force of a
contract was denied for alleged want of
Page 160 U. S. 522
authority of an agent to make the same, and this Court, through
Mr. Justice Miller, held:
"We are satisfied that the agreements set up in the bill are the
valid contracts of the defendants. Though the plaintiff was unable
to produce any resolution or order in writing by the trustees or
board of directors of the defendant corporation, and though the
seal used was the private seal of one of its officers, instead of
the corporate seal, neither of these is essential to the validity
of the contract. We entertain no doubt that Rindge, the agent and
one of the directors and treasurer of the Eureka Company, was
authorized to execute the agreement, and if any doubt existed on
that point, the report and payment for five hundred machines, the
first month's use of the patent under the agreement, would remove
the doubt. If it did not, it would very clearly amount to a
ratification."
In
Bank of the United States v.
Dandridge, 12 Wheat. 65, it was held that where a
cashier was appointed and permitted to act in his office for a long
time under the sanction of the directors, it was not necessary that
his official bond should be accepted as satisfactory by the
directors, according to the terms of the charter, in order to
enable him to enter legally on the duties of his office or to make
his sureties responsible for the nonperformance of their duties;
that the charter and the bylaws are to be considered in this
respect as directory to the board, and not as conditions precedent,
and Mr. Justice Story, in discussing the subject, said:
"A board may accept a contract or approve a security by a vote,
or by a tacit and implied assent. The vote or assent may be more
difficult of proof by parol evidence than if reduced to writing.
But this is surely not a sufficient reason for declaring that the
vote or assent is inoperative."
See also Pittsburgh & Cincinnati Railway v. Keokuk &
Hamilton Bridge Co., 131 U. S. 371,
131 U. S.
381.
As, then, the contract in question was, upon our present
assumption, within the legitimate scope of the powers of the
company, and was executed by that officer of the company who by the
bylaws was the proper agent to perform such function, and as the
company went into possession of and received the rents and profits
of the hotel, we conclude that the company
Page 160 U. S. 523
was bound thereby, even if the minutes of the company fail to
disclose authority expressly given to the president to execute the
contract.
It is, however, further claimed that the contract sued on was
not within the legitimate powers of the company.
This is not a case in which, either by its charter or by some
statute binding upon it, the company is forbidden to make such a
contract. Indeed, the public laws of Florida referring to the
powers of railroad companies provide that every such corporation
shall be empowered
"to purchase, hold, and use all such real estate and other
property as may be necessary for the construction and maintenance
of its road and canal and the stations and other accommodations
necessary to accomplish the objects of its incorporation, and to
sell, lease, or buy any land or real estate not necessary for its
use."
McClel. Digest of the Laws of Florida, p. 278, sec. 10. They are
likewise authorized
"to erect and maintain all convenient buildings, wharves, docks,
stations, fixtures, and machinery for the accommodation and use of
their passengers and freight business."
Although the contract power of railroad companies is to be
deemed restricted to the general purposes for which they are
designed, yet there are many transactions which are incidental or
auxiliary to its main business, or which may become useful in the
care and management of the property which it is authorized to hold,
and in the safety and comfort of the passengers whom it is its duty
to transport.
Courts may be permitted, where there is no legislative
prohibition shown, to put a favorable construction upon such
exercise of power by a railroad company as is suitable to promote
the success of the company within its chartered powers and to
contribute to the comfort of those who travel thereon. To lease and
maintain a summer hotel at the seaside terminus of a railroad might
obviously increase the business of the company and the comfort of
its passengers and be within the provisions of the statute of
Florida above cited whereby a railroad company is authorized
"to sell, lease, or buy any land or real estate not necessary
for its use' and to 'erect and maintain all
Page 160 U. S. 524
convenient buildings . . . for the accommodation and use of
their passengers."
Courts may well be astute in dealing with efforts of
corporations to usurp powers not granted them or to stretch their
lawful franchises against the interests of the public. Nor would we
be understood to hold that, in a clear case of the exercise of a
power forbidden by its charter or contrary to public policy, a
railroad company would be estopped to decline to be bound by its
own act, even when fulfilled by the other contracting party.
Davis v. Old Colony Railroad Co., 131 Mass. 258;
Thomas v. Railroad Co., 101 U. S. 71;
Central Transportation Co. v. Pullman's Palace Car Co.,
139 U. S. 24. So
too it must be regarded as well settled, on the soundest principles
of public policy, that a contract by which a railroad company seeks
to render itself incapable of performing its duties to the public,
or attempts to absolve itself from its obligation without the
consent of the state is void, and cannot be rendered enforceable by
the doctrines of estoppel.
New York & Maryland
Railroad Co. v. Winans, 17 How. 30;
Thomas v.
Railroad Co., 101 U. S. 71;
Central Transportation Co. v. Pullman Car Co.,
139 U. S. 24.
We do not seek to relax, but rather to affirm, the rule laid
down by this Court in
Central Transportation Co. v. Pullman's
Car Company (above cited) that
"a contract of a corporation which is
ultra vires, in
the proper sense -- that is to say, outside the object of its
creation, as defined in the law of its organization -- and
therefore beyond the powers conferred upon it by the legislature,
is not voidable only, but wholly void and of no legal effect. The
objection to the contract is not merely that the corporation ought
not to have made it, but that it could not make it. Such a contract
cannot be ratified by either party, because it could not have been
authorized by either. No performance on either side can give the
unlawful contract any validity, or be the foundation of any right
of action upon it."
139 U.S.
139 U. S.
59-60.
But we think the present case falls within the language of Lord
Chancellor Selborne in
Attorney General v. Great Eastern
Railway, 5 App.Cas. 473, 478, where, while declaring
Page 160 U. S. 525
his sense of the importance of the doctrine of
ultra
vires, he said:
"This doctrine ought to be reasonably, and not unreasonably,
understood and applied, and that whatever may fairly be regarded as
incidental to or consequential upon those things which the
legislature has authorized ought not, unless expressly prohibited,
to be held by judicial construction to be
ultra
vires."
In the application of the doctrine, the court must be influenced
somewhat by the special circumstances of the case. As was said by
Romilly, M.R., in
Lyde v. Eastern Bengal Railway, 36 Beav.
10, where was in question the validity of a contract by a railway
company to work a coal mine:
"The answer to the question appears to me to depend upon the
facts of each particular case. If in truth the real object of the
colliery was to supply the railway with cheaper coals, it would be
proper to allow the accidental additional profit of selling coal to
others; but if the principal object of the colliery was to
undertake the business of raising and selling coals, then it would
be a perversion of the funds of the company, and a scheme which
ought not to be permitted, however profitable it might appear to
be. The prohibition or permission to carry on this trade would
depend on the conclusions which the court drew from the
evidence."
The principle upon which we may safely rule the present question
is within the case of
Brown v. Winnisimmet Company, 11
Allen 326. There, a contract made by the treasurer of a ferry
company to lease one of the company's boats for a certain money
consideration was alleged to be void for want of antecedent
authority given by the company to the treasurer, and also because
such a contract was not made in the legitimate exercise of the
company's powers. On the first point, it was ruled that from
evidence showing ratification by the company it was proper for the
jury to infer that the treasurer had been duly authorized to make
the contract, and, disposing of the second question, the court,
through Chief Justice Bigelow, said:
"We know of no rule or principle by which an act creating a
corporation for certain specific objects, or to carry on a
particular trade or business, is to be strictly construed as
prohibitory of all other dealings or transactions
Page 160 U. S. 526
not coming within the exact scope of those designated.
Undoubtedly the main business of a corporation is to be confined to
that class of operations which properly appertain to the general
purposes for which its charter was granted. But it may also enter
into and engage in transactions which are auxiliary or incidental
to its main business, which may become necessary, expedient, or
profitable in the care and management of the property which it is
authorized to hold under the act by which it was created."
See also Davis v. Old Colony Railroad, 131 Mass. 258,
272.
The contract between the parties hereto was for leasing an hotel
at the terminus of the railroad situated at a beach distant from
any town. If not fairly within the authority granted by the statute
of Florida "to erect and maintain all convenient buildings . . .
for the accommodation and use of their passengers," it certainly
cannot be said to have been forbidden by such laws. Nor can it be
said to have been, in its nature, contrary to public policy.
To maintain cheap hotels or eating houses at stated points on a
long line of railroad through a wilderness, as in the case of the
Pacific railroads, or at the end of a railroad on a barren,
unsettled beach, as in the present case, not for the purpose of
making money out of such business, but to furnish reasonable and
necessary accommodations to its passengers and employees, would not
be so plainly an act outside of the powers of a railroad company as
to compel a court to sustain the defense of
ultra vires as
against the other party to such a contract.
But even if the railroad company might be answerable for the
rent of the premises, it is contended that the covenant to procure
insurance was so far outside of the company's powers as not to be
enforceable.
No one could deny that it would not be competent for a railroad
company, without the authority of the legislature, to carry on an
insurance business. But this covenant to keep the premises insured
is correlative to the obligation of the lessors to rebuild in case
the hotel should be destroyed by fire, and to the provision that in
such an event, the rents should cease until the hotel should be put
in habitable condition and repair
Page 160 U. S. 527
by the lessors. Such mutual covenants are quite usual in leases
of this kind, and are merely incidental to the principal purpose of
the contract.
Suppose the contract proven and the defense of
ultra
vires deemed inadmissible, it is claimed by the railroad
company that it is not liable in damages for its failure to procure
the insurance, because it was unable to get the insurance; that its
contract in that particular was impossible of performance.
There is such a defense known to the law as an impossibility of
performance. Instances of such a defense are found in cases where
the subject matter of the contract had ceased to exist, as where
there was a contract of sale of a cargo of grain supposed by the
parties to be on its voyage to England, but which, having become
heated on the voyage, had been unloaded and sold, and where it was
held that the contract was void inasmuch "as it plainly imputed
that there was something which was to be sold and purchased at the
time of the contract," whereas the object of the sale had ceased to
exist.
Courtrier v. Hastie, 5 H.L. Cas. 673;
Allen v.
Hammond, 11 Pet. 63.
So also, where a person purchased an annuity which at the time
of the purchase had ceased to exist owing to the death of the
annuitant, it was held that he could recover the price which he had
paid for it.
Strickland v. Turner, 7 Exch. 208.
So where there is obvious physical impossibility or legal
impossibility which is apparent on the face of the contract, the
latter is void.
But the present case does not fall within either of these
classes, but is a case of impossibility of performance arising
subsequently to the making of the contract.
Here the general rule is that such impossibility, even though it
arises without any fault on the part of the covenantor, does not
discharge him from his liability under the contract.
"The principle deducible from the authorities is that if what is
agreed to be done is possible and lawful, it must be done.
Difficulty or improbability of accomplishing the undertaking will
not avail the defendant. It must be shown that the thing cannot by
any means be effected. Nothing short of this
Page 160 U. S. 528
will excuse performance. The answer to the objection of hardship
in all such cases is that it might have been guarded against by a
proper stipulation. It is the province of courts to enforce
contracts, not to make or modify them. When there is neither fraud,
accident, nor mistake, the exercise of dispensing power is not a
judicial function.
The Harriman, 9 Wall.
172. Impossible conditions cannot be performed, and, if a person
contracts to do what at the time is absolutely impossible, the
contract will not bind him, because no man can be obliged to
perform an impossibility. But where the contract is to do a thing
which is possible in itself, the performance is not excused by the
occurrence of an inevitable accident or other contingency, although
it was not foreseen by the party nor within his control."
Jones v. United States, 96 U.
S. 29.
It appears that there was some evidence to the effect that,
prior to the making of the lease, the owners of the hotel had some
conversation with one or more insurance agents who refused to
insure the hotel building, and upon this evidence, the defendant
asked the court to charge the jury that if the plaintiffs knew that
the property, at the time of the making the contract, was not
insurable, or if, knowing that they had tried to get insurance and
failed, they did not so notify the defendant, then the plaintiffs
acted in bad faith, and should not be permitted to recover. The
court refused to so charge, and very properly. The evidence
disclosed by the record, even if believed by the jury, would not
have justified a verdict that the plaintiffs acted in bad faith. It
is not shown that they made any false representations on the
subject, and the very fact that they demanded a covenant to procure
insurance from the defendant put the latter on inquiry as to its
ability to procure it.
Error is alleged in the refusal of the court to charge that
"if the jury believed from the evidence that insurance on the
property in question was sought to be obtained at the usual places
where such insurance would be applied for, and such agencies
applied to, representing companies insuring property in all parts
of the United States, refused to insure the property, on the ground
that such property was not insurable, and insurance
Page 160 U. S. 529
companies would not insure such classes of property, then the
agreement to insure was impossible of performance, and plaintiffs
could not recover."
We are not furnished in this record by any bill of exceptions or
by a certificate of the judge with all the evidence on which this
request to charge was based, but assuming that the evidence
contained in the bill of exceptions was all that there was, it
would have been error in the court to have given the instruction
prayed for. That evidence is very far from disclosing the state of
facts assumed in the request. Two or three insurance agents,
resident in the City of Jacksonville, testified that on one or two
occasions, whose dates they could not fix, there had been inquiries
made by some one representing the defendant about insurance. Giving
the utmost effect to the testimony, it altogether failed to show
such a case of impossibility as would, under the authorities, have
discharged the defendant from the obligation of his contract, and
we think the court would not have erred in so charging the jury.
However, the court left the question as one of fact to the jury,
and we perceive no misdirection in his remarks.
It remains to consider the question of the measure of damages,
and some objections made to the charge of the court on that
subject.
If the defendant subjected itself by a valid contract to keep
the premises insured in the sum of six thousand dollars during the
term of the lease, and, without sufficient cause, failed to do so,
and if the hotel was worth the sum mentioned, and was wholly
destroyed by fire, the extent of the defendant's liability would
obviously be the amount of the plaintiffs' damages -- namely six
thousand dollars.
It is argued that the defendant received no consideration for
agreeing to insure the property; that it contracted to pay the
costs of insurance as part of the rental, and the cost of the
premium of insurance was the proper measure of recovery. The
obligation of the lessors to rebuild and repair in case of fire,
and the suspension of the rent so long as the premises remained
uninhabitable, formed the consideration of the defendant's
agreement to insure, and we cannot accept the
Page 160 U. S. 530
proposition that the plaintiffs' damages arising our of the
breach of the contract are to be measured by what it would have
cost the defendant to secure the stipulated insurance.
Complaint is made of the observations made by the judge when
instructing the jury as to the weight which they should give to the
testimony in relation to the value of the property. The testimony
was somewhat conflicting, and the remark chiefly criticized was to
the effect that, in coming to a conclusion, the jury should
consider the testimony in the light of their own experience and
knowledge. We do not regard such a caution as objectionable.
In deciding disputes between litigant parties, where witnesses
are naturally apt to state facts strongly in favor of their
respective principals, the jury well may, and, in fact must, use
their own knowledge and experience in the ordinary affairs of life
to enable them to see where is the truth. This is particularly true
where, as in the present case, the conflict was in matter of
opinion as to the value of a building no longer in existence.
The plaintiffs conceded that all the rent had been paid except
$106.67, which in the declaration was demanded. The defendant gave
no evidence on the subject, and, in such a state of the record and
of the evidence, we think no error was committed by the court in
charging the jury that they could find for the plaintiffs the
amount of rent demanded unless the defendant showed that it had
been paid.
These views cover all the assignments of error which we deem
worthy of notice, and the judgment of the court below is
Affirmed.