Daughtery v. American Union Telegraph Company. recovery." To test the question, let us suppose that in a suit for a breach of contract, the plaintiff makes proof of damage, reasonably certain as to amount, which is the natural result that is, the result according to the usual course of things- of the breach of contract. Would any one attempt to defend on the ground that such damages were not, in fact, in contemplation of the parties, when they entered into the contract. Mr. Baron ALDERSON'S language should be interpreted in the light of the facts he was dealing with. Plaintiffs were claiming a recovery, based on circumstances that were special and exceptional. Those circumstances were not suggested, nor likely to be suggested, by the appearance or nature of the article which was the subject of the contract. Hence the injury complained of would not arise in the natural, or usual course of things. If the special, ulterior purposes were disclosed, they would then become an element of the duty imposed by the contract. The things of apparently little value the transaction of apparently minor importance- would thus be raised to great value and commanding importance. This enhanced value, this stimulated diligence, Baron ALDERSON, as we think, attempted to describe, as being the damages resulting from a breach, "within the contemplation of the parties." Is it not rather a bringing within the contemplation of the parties the special facts which magnify the transaction, and as a consequence, the injury likely to ensue from a breach of the contract? We are aware that the language, or phrase we have been criticising, has been repeated and re-repeated in many judicial opinions. It has come to be almost a stereotyped phrase; so general that it may appear to be temerity in us to question its propriety. We think however it is in itself inapt and inaccurate, and that its import has been greatly and frequently misunderstood. It is often employed in apposition to, or as the synonym of that other qualifying clause - the natural result of, or in the usual course of things. We think this a great departure from the sense in which Baron ALDERSON intended it should be understood. Altogether, we think it obscure and misleading, and that an attempt to install it as one of the canons has caused many, very many erroneous rulings. But even if we retain the expression we have been commenting on, as a qualifying property of recoverable damages, it is a rule by no means of universal application. Speaking of the decision in Hadley v. Baxendale, Ch. B. POLLOCK, in Newport Dock Co. v. Wil Daughtery v. American Union Telegraph Company. * son, L. R., 1 Exch. 177, said: "It is quite true that the case is not applicable to, and does not decide every case. No rule, no formula could do that. No precise, positive rule can embrace all cases." It may be, and doubtless is well adapted to cases like Hadley v. Baxendale, where the subject of the contract, relatively insignificant in its primary aspect and apparent purpose, was yet, by special circumstances, magnified into much greater dimensions. This rule was properly applied in that case, because a knowledge of the extrinsic facts would naturally stimulate diligence. Can such a rule, with any propriety, be applied to transactions or lines of dealing, in which the same measure of diligence is required in each act or function, without regard to the quantum of interest to be affected by it? Legal dogmas should rest on some principle, which can be appreciated. cerns. The telegraph is a modern discovery. Speedy communication is its boasted merit, the object of its use. It is much more expensive than communications by mail, and therefore would not be resorted to, if time were not of its very essence. Its tariff of rates is graduated by the number of words employed, not by the pecuniary value of the telegram, nor by the magnitude of the interests it conWith few exceptions, imposed by public exigency, it is governed by the law of the mail. Messages must be sent in the order of their handing in, without favor or partiality, without delay, and without reference to the value of the interests to be affected. Shear. & Redf. on Neg., § 557; Barren v. Lake Erie Tel. Co., 1 Am. Law Reg. 685; Birney v. N. Y. & W. Tel. Co., 18 Md. 341; W. U. Tel. Co v. Ward, 23 Ind. 377; Leonard v. N. Y., A. & B. Tel. Co., 41 N. Y. 544; s. c., 1 Am. Rep. 446; Squire v. W. U. Tel. Co., 98 Mass. 232; Parks v. Alta Cal. Tel. Co., 13 Cal. 422. A failure from uncontrollable causes, such as electrical storms, etc., would excuse the company's delay in delivery; but no such excuse is shown here. In Scott & Jarnigan's note to section 166, Law of Telegraph, commenting on Shields v. W. & N. O. Tel. Co., is this language: "Why has the operator any right to know what the message refers to? Or why the necessity of drawing inferences or conjectures in reference thereto? How will such knowledge aid him in the discharge of his obligation to send the message correctly? What difference does it make, in this respect, whether the message conveyed an order to purchase, or an account of sales?' Would such knowledge aid him in the correct transmission of the Warren v. Wagner. message?" They thought the view taken in Shield's case "was not the correct one." We fully concur with Messrs. Scott & Jarnigan, and hold that the liability of the telegraph company does not depend on the knowledge the operator may have of the contents of the message. [Minor points omitted.] The judgment of the Circuit Court is reversed, and the cause remanded. Judgment reversed. WARREN V. WAGNER. (75 Ala. 188.) Statute-"sell and convey"-lease-tenant's liability to repair—liability for rent after destruction. A statutory power to a married woman to "sell and convey" her lands as if unmarried, authorizes her to lease them, and she may lease them in conjunc. tion with her husband. A stipulation in a lease, to surrender the premises at the expiration of the term “in as good order and condition as the same now are, reasonable use and wear and tear excepted," does not impose the liability to repair or restore in case of injury or destruction by the elements or accident.* In case of a lease of lands, with the right of quarrying stone, the destruction of a lime-kiln on the lands does not relieve from liability to pay rent although the kiln was the principal inducement and the principal source of profits. A CTION on notes for rent. The opinion states the facts suffi ciently. The plaintiff had judgment below. Rice & Wiley, for appellant. Troy & Tompkins, and Wilson & Wilson, contra. BRICKELL, C. J. [Omitting other considerations.] A married woman having a statutory separate estate, is relieved of the disabilities of coverture by decree of the chancellor, rendered in pursuance of the statute. Code of 1876, § 2731. Subsequently with the concurrence of her husband manifested by his joining in the execution of the lease, she leases her lands for a term of years taking notes *Same effect, Miller v. Morris (55 Tex. 412); 40 Am. Rep. 814. Warren v. Wagner. payable to herself alone, for the installments of rent as they accrue according to the lease. Two questions are raised upon this state of facts: First, is the lease valid; secondly, can the wife in her own name maintain an action at law for the recovery of the rents as they fall due. The effect of the statute and of the decree of the chancellor rendered in conformity to it has been of frequent consideration in this court; and as is insisted by counsel for appellant, the statute has been regarded as enabling the wife as enlarging her capacity to contract, and her capacity to sue and be sued alone only to the extent and for the purposes specified. It has not been construed as conferring a capacity to contract generally; nor a capacity of suit otherwise than as it may result from her contracts or engagements, entered into in the exercise of the right with which she is invested. Dreyfus v. Wolffe, 65 Ala. 496; Holt v. Agnew, 67 Ala. 360; Ashford v. Watkins, 70 Ala. 156. The right or power with which she is invested in the words of the statute is "to buy, sell, hold, convey and mortgage real and personal property, and to sue and be sued as a feme sole." Though the right Though the right or power to lease lands is not in express words conferred, a construction of the words "sell and convey" which would not include it would be exceedingly narrow and illiberal, rendering the statute an abridgment rather than an enlargement of the power over her lands which the wife in conjunction with her husband could exercise either at the common law or under the pre-existing statutes, which disable the husband from taking title to her property of any kind and confer upon her capacity to hold it as if she were a feme sole. The common law upon marriage, "without the birth of issue casts upon the husband an estate in all the wife's real property in possession, whether of inheritance or of freehold for life, during the joint lives of himself and wife." 1 Bish. Mar. Women, § 529.. The death of the wife or the death of the husband terminated the estate. If there was issue born alive of the marriage capable of inheriting the estate, the estate of the husband endured for his own life. Without the concurrence of the wife the husband could bargain, sell and convey his estate in her lands; and the larger power included the less of leasing them, reserving the rents to himself alone. The term created by the lease could endure only during the continuance of his estate; for the principle of the common law was inflexible, "that no man could grant a lease to continue beyond the Warren v. Wagner. 1 Bish. Mar. period at which his own estate was to determine." 4 Kent Com. 116. The wife was incapable of leasing her lands, and her lease like her conveyance in fee was void, not voidable as was the lease of an infant; void not only because the present interest was in the husband but because coverture disabled her from binding her estate or binding herself personally. In the absence of statutes authorizing a lease of the lands of the wife by husband and wife jointly, they could join in a lease, and during the continuance of the estate of the husband it was valid and operative. Upon the expiration of his estate, the lease was voidable not void; the wife surviving, or in the event of the death of her heirs, had the election to affirm or disaffirm it; an acceptance of rent was an affirmance. Women, §§ 538-45. Statutes expressed in general terms, empowering husband and wife to convey her lands, included the power of leasing them; and a lease executed in the mode prescribed by the statutes was binding upon the wife or her heirs, after the death of the husband and the expiration of his estate. 1 Bish. Mar. Women, § 549; Jackson v. Holloway, 7 Johns. 81; George v. Goldsby, 23 Ala. 326. In Jackson v. Holloway, supra, said THOMPSON, J.: "The wife may during coverture part with the whole or any portion of her interest in real estate, if the deed be acknowledged in the mode prescribed by the statute, concerning the proof of the deeds. The words of the act are general extending to any estate of the feme covert." The statute creating and defining the separate estates of married women and the provisions of the Constitution preserve to the wife the capacity of taking and of holding property notwithstanding coverture, and operate to deprive the husband of the right he had by the common law of taking and of holding property owned by her at the time of marriage, or to which she subsequently became entitled. In very general terms it is declared: "The property of the wife, or any part thereof, may be sold by the husband and wife, and conveyed by them jointly, by instrument of writing, attested by two witnesses." The acknowledgment of the conveyance before an officer authorized to take acknowledgments of conveyances is the equivalent of an attestation by two witnesses. Code of 1876, §§ 2707-8. The statute has not been construed as empowering husband and wife to mortgage the estate of the wife; for a power simply to sell and convey does not include a power to mortgage, unless there is something added over and above, showing that the power 66 |