warranty in this jurisdiction? Article 1, chapter 2, title 2, of our Civil Code, relating to the measure of damages for breach of contract contains these provisions: "Section 2305. The detriment caused by the breach of a warranty of the quality of personal property is deemed to be the excess, if any, of the value which the property would have had, at the time to which the warranty referred, if it had been complied with, over its actual value at that time. Section 2306. The detriment caused by the breach of a warranty of the fitness of an article of personal property for a particular purpose is deemed to be that which is defined by the last section, together with a fair compensation for the loss incurred by an effort in good faith to use it for such purpose." it failed to clearly define the nature and extent of the injuries for which the plaintiff was entitled to compensation under any implied warranty. Therefore, assuming the circuit court had jurisdiction, its judgment should be reversed and a new trial ordered. CORSON, J., concurs. WHITING, P. J. (concurring specially). While I am of the opinion that, under the pleadings and the instructions as given, there is error sufficient to warrant the granting of a new trial herein, yet I am unable to agree with the foregoing opinion either upon the question of jurisdiction or in all that is found therein relating to the measure of damages for breach of warranty. While sections 2305, 2306, of the Revised Civil Code of this state cover the measure of damages in all ordinary cases, yet I am of the opinion that, whenever there is a warranty of quality or fitness and the seller knows that the purchaser has certain work contracted for in the performance of which work the machine to be purchased is to be used, and where, if there shall prove to be a breach of such warranty, it must be antici The contention that section 2305, relates only to general damages or such as are the natural and necessary results of the breach and does not include special or such consequential damages as the parties may reasonably be supposed to have had in contemplation when the sale was made, is in a sense correct. That section establishes the rule only in cases to which it is applicable, and may be said to express the general rule, while section 2306 provides for what respond-pated that the purchaser will suffer a loss of ent terms "special damages," prescribing the cases in which they are allowable and the true measure of the same. Construed together these sections are not in conflict with the generally recognized doctrine relating to direct and consequential damages for breach of warranty. They not only announce the general rule, but define the cases in which the general rule shall be regarded as affording inadequate redress and special or consequential damages allowed. The fallacy in respondent's argument is his failure to observe that his case does not fall within the terms of the section authorizing special damages. If it involved a warranty of the fitness of the engine for the purpose for which it was purchased it would admit of special damages, the measure of which would require consideration. Defendant may have known the purpose for which the engine was purchased, but its fitness for that purpose was not warranted. If there was any warranty it resulted from the use of the catalogue the express warranty printed therein, or from the contract of sale-the implied warranty that the engine was "sound and merchantable." Defendant is not complaining and plaintiff is not in position to complain of the charge as to the measure of damages for a breach of the former, while it is clear that the proper measure of damages for a breach of the latter is governed by the provisions of section 2305. Hence, the court erred in admitting evidence of lost profits and in charging the jury as it did with respect to the measure of damages, should they find that plaintiff did not know of all the terms and conditions printed in the catalogue. Moreover, profits on the contract he has entered into, the seller will be liable for such loss of profits as would be thus anticipated to naturally flow from such breach of warranty; the damages to be recovered, in any case, being limited under section 2329 of the Revised Civil Code by the amount which the injured party would have gained if there had been no breach of such warranty. Sections 671–676 (3d Ed.), Sutherland on Damages; Critcher v. Porter-McNeal Co. et al., 135 N. C. 542, 47 S. E. 604. In the North Carolina case, which in many respects was quite similar to this, is found quoted the rule as laid down in the leading case of Headley v. Baxendale, Exch. 341, as follows: "When two parties made a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract should be such as may fairly and reasonably be considered either arising naturally-that is, according to the usual course of things-from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiff to defendant, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But on the other hand, if these special circumstances were wholly he, at most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in a great multitude of cases, not affected by any special circumstances for such a breach of contract, for, had the special circumstances been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case, and of this advantage it would have been very unjust to have deprived them." I believe the trial court was correct in holding that it had acquired jurisdiction over the defendant through the service of the summons upon the agent Brown. There was, in the affidavits presented to such court, sufficient to justify the court in finding: That said corporation had been doing business within this state, in the selling of mining machinery, for several years, but that it had wholly failed to obey the laws of this state requiring the appointment of an agent upon whom service of papers might be made; that Brown, upon whom it is claimed service was made in this case, was an agent of the company who had been such agent for some time; that every few months he made a certain territory in this state soliciting and taking orders for the machinery sold by the defendant company; that such agent had more or less discretion in the matter of granting terms to purchasers, other than those terms named in the catalogues; and that the company frequently shipped machinery consigned to themselves, which machinery Brown would then deliver. Our statute permits of service upon a managing agent where the foreign corporation is doing business in this state. The only question for our determination then is whether or not said Brown was such an agent as is contemplated by such statute. No fixed rule or criterion can be laid down for determining who are and who are not managing agents, but when, as in this case, a foreign corporation has appointed no agent upon whom service might be made-has no fixed place of business in this state-and does no business here except that of selling machinery upon orders received by mail or such as may be taken by their traveling agent, the court should certainly, if possible, hold that such agent-being the only person in the state through whom the company does businessis, for the purpose of litigation growing out of such business transacted within this state, a proper agent for service of papers. the service is attained when the agent served is of sufficient character and rank to make it reasonably certain that defendant will be apprised of the service made. The statute is satisfied if he be a managing agent to any extent," and the appellate court of New York, in the case of Tuchband v. Chicago & A. R. Co., 115 N. Y. 437, 22 N. E. 360, used the following language, which we think is applicable to all cases under this statute: "It of course intends 'a managing agent' in this state; and when the corporation, created by the laws of any other state, does business in this state, the person who, as its agent, does its business should be considered its managing agent." In the New York case, such foreign corporation had an office or fixed place of business, but we cannot see why this fact should distinguish that case from the one now before us. We are satisfied that the trial court committed no error in denying the motion and holding the service of the summons to be good. The judgment appealed from is reversed and a new trial ordered. McCOY, J. I concur in the result that there should be a reversal of the judgment and a new trial ordered. SMITH, J. I concur with Justice WHITING as to service of summons on a managing agent, and in the conclusion of Justice HANEY as to error in the charge of the trial court, for which a new trial should be awarded. MILLER v. ST. PAUL FIRE & MARINE (Supreme Court of South Dakota. Nov. 21, 1. INSURANCE (§ 146*) CON. CONTRACTS STRUCTION-INTENTION OF PARTIES. Under Civ. Code, § 1245, requiring a contract to be so interpreted as to give effect to the intention of the parties, the court, in construing a fire policy, must determine the intention of the parties at the time of the execution of the policy, and enforce it accordingly. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 292-298; Dec. Dig. § 146.*] 2. CONTRACTS (§ 147*) - CONSTRUCTION - INTENTION OF PARTIES. Under Civ. Code, §§ 1247, 1248, providing certained from the writing, the court, in deterthat the intention of the parties must be asmining the intention of the parties to a contract, must take into consideration the language thereof; and all the parts of the contract must be considered, and the intention ascertained from the words alone. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 730, 743; Dec. Dig. § 147.*] 3. INSURANCE (8 150*) - CONTRACTS - CON STRUCTION. In the case of Palmer v. Foley, 42 Super. Ct. Rep. (N. Y.) 369, the court well said: "The Code does not specify the extent of the agency required to bind defendants by service of process, except that the person upon whom the service is made, must be managing agent. Were the rule to be established as contended by appellants, that the agent must have charge of the whole business of the corporation, the statute would be a dead letter, for such seldom, if ever, exists. Every object of For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes A fire policy, stipulating in the body thereof that it shall be void if insured has or obtains any other insurance without the assent of insurer, and providing in the attached rider, in which the property is described and the amount of in surance is stated, "$...... other concurrent in- Appeal from Circuit Court, Spink County. of the property insured and the amount of the insurance was according to the usual form, separately stated on a "rider" attached to the policy, and, so far as the same is material to this decision, read as follows: W. F. Corrigan, for appellant. L. W. Cro-"$ foot, for respondent. one-story frame building with composition roof and additions attached thereto," etc., "occupied by H. A. Miller as general merchandise store, situated on lot 5, block 13, Main street, town of Brentford, Spink County, South Dakota. etc. other concurrent insurance permitted. "$500.00 on store and office fixtures, including," "$ other concurrent insurance permitted. "$1,000.00 on stock of merchandise, consisting of," etc. other concurrent insurance permit "$ ted." The trial court on the question of concurrent insurance instructed the jury that there had been no waiver by the defendant company as to concurrent or additional insurance, unless its agent, who wrote the policy, had knowledge, at the time of the McCOY, J. Plaintiff, who is appellant, brought suit in the circuit court against the defendant to recover for the loss of certain store fixtures and furniture and stock of merchandise, totally destroyed by fire on the night of January 6, 1908, at Brentford, Spink county, while said furniture, fixtures, and stock of merchandise were covered by a policy of insurance issued by defendant company, in favor of plaintiff, to the amount of $500 on fixtures and furniture and $1,000 on stock of merchandise. Defendant answered, admit-issuing thereof, that there was prior insurting the issuance of said policy and the total loss by fire of the said property covered thereby. Defendant also admitted the allegations of the complaint that proof of loss had been made and sworn to and rendered to defendant, and that plaintiff had no other insurance on said property, except $500 on furniture and fixtures and $7,000 on stock of merchandise. Defendant denied the allegations of the complaint that the said stock of merchandise was of the value of $11,300 when destroyed by said fire, or of any other or greater value than $2,500, and also denied that the said furniture and fixtures were of the value of $1,100 when destroyed by said fire, or of any other or greater value than $500. Defendant also set up, among others, the following affirmative defenses against recovery on said policy: (1) That plaintiff fraudulently set said fire; (2) that the policy was void on account of the other insurance on the said property by the Citizens' Insurance Company, and the Queen Insurance Company, without the knowledge or assent of defendant; (3) that the plaintiff, in his sworn proof of loss, fraudulently overstated the amount of his loss. On the trial a verdict was rendered in favor of defendant upon all the issues, and judgment rendered thereon for defendant. Plaintiff moved for new trial, and, the same being overruled, he has brought the cause to this court on appeal, assigning various errors. Appellant first contends that the trial court erred in its instructions to the jury in relation to other and additional insurance. In the body of the policy was the following clause: "This policy shall be void if the insured now has or shall hereafter obtain any other insurance on said property without the assent of this company." The description ance on the property, and that, if the jury should find that at the time of issuing this policy the agent, Smith, did not know that there was other insurance on the stock under the policy issued by Hegnes, the plaintiff cannot recover anything. It will be observed that by this instruction the trial court wholly ignored that portion of the policy: "$...... other concurrent insurance permitted." This plaintiff claims was error. Without this clause, "$...... other concurrent insurance permitted," being contained in the policy, appellant concedes that the policy in question would be void on account of the concurrent or additional insurance; but appellant contends that this clause, “$...... other concurrent insurance permitted," was permission and assent given by defendant under the express terms of the policy, authorizing other concurrent and additional insurance, thereby rendering the said instruction of the court erroneous. We are of the opinion that this contention is not tenable, and that the instruction giv en by the trial court was proper. It is a question of the intention of the parties at the time this contract was executed. If the words, "other concurrent insurance permitted," were not preceded by the dollar sign and a space for indicating the amount of concurrent insurance to be permitted, but stood alone, or were either prefixed or affixed to some sentence in that connection within the contract, then there might be some merit in the contention. The contract must be so interpreted as to give effect to the mutual intention of the parties, as it existed at the time of the contracting, so far as the same is ascertainable and lawful. Section 1245, Civ. Code. And again, in determining the intention of the parties to a Finding no error in the record, the judgment of the circuit court is affirmed. contract, the language of the contract must | ance, but the very contrary. Also to the be taken into consideration. All the other same effect is Philadelphia Ins. Co. v. Bigparts and portions of the contract must also low (Fla.) 37 South. 210. In Medley v. Gerbe considered, and where the contract is in man Am. Ins. Co., 55 W. Va. 342, 47 S. E. writing the intention of the parties is to be 101, it is held otherwise; but the reasons ascertained from the words of the contract given for the rule in the other cases cited alone, if possible. Sections 1247 and 1248, seem to us to be founded in better reason. Civ. Code. It is a matter of common knowl- Many other errors are assigned, based on edge that for convenience "riders" or printed | alleged errors in the instructions given; but forms are printed and used by those who careful examination reveals no reversible erwrite insurance for the purpose of avoiding ror therein. A number of other errors are the writing of long descriptions of property. also assigned in relation to the reception of One of such "riders" or printed forms was testimony; but we are unable to find any used in writing the policy in question. The error therein that would warrant a reversal "rider" form used consisted of six clauses, of the judgment. each beginning with the dollar sign, followed by blank space for numbers to indicate the amount of the insurance. There being no figures or numbers following the dollar sign in the first clause indicates that no insurance was intended to be written or placed on the store building; but the blank spaces as to the description, occupancy, and location of the building are filled in with the clear intention of locating the place where the insured property was to be kept. In the third clause the filling in of the figures "500.00" 1. in the space after the dollar sign clearly shows an intention that $500 insurance was placed on the articles of property described in that clause. The figures "1,000.00" in the blank space following the dollar sign in the fifth clause clearly indicates an intention to insure the stock of merchandise to the amount of $1,000. It is also very clear that, as to the intention and purpose of clauses 2, 4, and 6 of the form used, they were printed and existed therein for the purpose of indicating the amount, if any, of the concurrent insurance permitted, when so permitted; and it is equally clear that, when these blank spaces for figures in clauses 2, 4, and 6 were left unfilled, it indicated that no amount of concurrent insurance should be permitted. If there had been any intention to permit concurrent insurance, the amount thereof would have been filled in the space provided for such purpose; and, when the amount was not so filled in, the effect was to leave the whole of clauses 2, 4, and 6 of this "rider" used out of the contract and as constituting no part thereof. WHITING, J., took no part in this deci sion. RAUSCH v. HANSON. (Supreme Court of South Dakota. Oct. 4, 1910.) SPECIFIC PERFORMANCE (§ 121*)—ACTION— SUFFICIENCY OF EVIDENCE. In an action to compel specific performance of an agreement to convey land purchased under a contract providing payment of the price by installments, and forfeiting the contract for nonpayment thereof, evidence held to sustain a finding of a waiver by defendant of the forfeiture clause. [Ed. Note. For other cases, see Specific Per formance, Cent. Dig. § 390; Dec. Dig. § 121.*] 2. SPECIFIC PERFORMANCE (§ 16*)-OBJECTIONS TO RELIEF-INCREASE IN LAND VALUE. Where the price of the land fixed by the contract sought to be specifically enforced was its fair value when the contract was made, that in itself sufficient ground for denying specific the land subsequently increased in value is not performance of the contract to the purchaser. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. § 36; Dec. Dig. § 16.*] 3. SPECIFIC PERFORMANCE (§ 101*) — Good FAITH-WAIVER OF DEFAULT. defendant by paying part of the price in installPlaintiff contracted to purchase land from ments, the contract making the time of payment of the essence. Plaintiff delayed in making some of the payments because of family misfordid not demand payment. Plaintiff by his comtunes, but defendant waived the default, and plaint tendered the full contract price and demands a conveyance. Held, that specific performance was properly decreed. County. Action by Peter A. Rausch, as administrator of the estate of Peter J. Rausch, deceased, against Peter Hanson. plaintiff, defendant appeals. Affirmed. In Labell v. Georgia Home Ins. Co. (Tex. Civ. App.) 28 S. W. 133, on a policy provid-formance, Cent. Dig. § 311; Dec. Dig. § 101.*] [Ed. Note. For other cases, see Specific Pering that any additional insurance without the consent of the company would under the Appeal from Circuit Court, Walworth policy be void, it was held that a clause in such policy, "Total insurance permitted, $......" did not conflict with the policy, but was in perfect accord with it; that the blank space was the place provided for the statement of the amount of additional in- L. W. Crofoot and J. H. Bottum, for appelsurance, when additional insurance was per- lant. Frank Turner, for respondent. mitted, and, in the absence of any sum being named in the blank, it did not import the HANEY, J. This action was instituted to consent of the company to additional insur-enforce the specific performance of the fol From a decree for lowing written contract: "This contract and tiff executed and delivered to defendant a memorandum of agreement, made and en- note for $300, evidencing and representing tered into this 17th day of July, 1899, by and the first $300 payment mentioned in said conbetween Peter Hanson, party of the first tract, and that said note was secured by chatpart, and Peter J. Rausch, party of the sec- tel mortgage executed by plaintiff to defendond part, * * witnesseth: That the ant. (2) That under and in pursuance of the party of the first part, in consideration of the terms of said contract the plaintiff did, in covenants and agreements of the party of the the spring of 1900, enter into possession of second part, hereinafter mentioned, to be by said lands, and that the plaintiff now is, and him kept and performed, hereby sells and ever since the spring of 1900 has been, in the agrees to convey unto the party of the second actual, exclusive, and peaceable possession of part or his assigns, by good and sufficient said land and of every part thereof, and has deed of warranty, on the prompt and full per- cropped and cultivated the same each year, formance by said party of the second part including the year 1906. (3) That the plainof his part of this agreement, the following tiff's possession of said land and his cultivadescribed real estate. * * And the said tion of the same has been at all times with second party agrees to pay to Peter Hanson the actual knowledge and consent of the deas and for the purchase price of said prem- fendant. (4) That on or about the month of ises the sum of $1,750, with interest on all May, 1901, the wife of plaintiff departed this deferred payments at the rate of eight per life, leaving plaintiff with seven children, cent. per annum from October 1, 1899, pay- aged from 2 to 13 years, and that, by the ments to be made in the manner and at the death of the plaintiff's wife as aforesaid, his times following, to wit: $300 on or before ability to make the payments on said land in October 1st, 1900, $300 on or before October strict compliance with the terms of said con1st, 1901, $300 on or before October 1st, tract became and was greatly impaired. (5) 1902, $300 on or before October 1st, 1903, That in the spring of 1902, and at or before $300 on or before October 1st, 1904, and $250 the 2d day of April of that year, the plaintiff on or before October 1st, 1905. Said party of paid to the defendant on said land, and in the second part hereby agrees to pay all taxes pursuance of said contract, the sum of $130, assessed upon said premises before the same and that it was then and there agreed by both shall become delinquent, beginning with the plaintiff and defendant that said sum of $130 year 1899. That he will in all respects farm should apply on the purchase of said land and cultivate said premises in a careful and under the terms of said contract. (6) That workmanlike manner. But should default be since so purchasing said land the plaintiff has made in the said payments or any part of placed valuable improvements on said land, them as herein agreed, or in any of the cove- in this: That plaintiff has since so taking nants herein to be by the party of the sec- possession of said land broken up about 60 ond part kept and performed, then this agree- acres thereof; that about 32 acres of said ment to be void at the election of the said land was broken up in the season of 1905; party of the first part, time being of the es- that all of said breaking was done with the sence of this agreement. And, in case of actual knowledge and consent of defendant; default by the said second party in part or and that the value of said breaking is about in whole of the covenant of this agreement $3 per acre. (7) That at sundry and divers to be by him kept and performed, he hereby times since the making of said contract, and agrees, on demand of the said party of the when plaintiff was unable to meet his payfirst part, to quietly and peaceably surrender ments thereon, and during the summer of the said premises and the possession thereof 1905, the plaintiff inquired of defendant reto the party of the first part or his agent, it garding extensions on payments on said conbeing understood and agreed that, until such tract, and was advised by defendant that dedefault, such party of the second part is to fendant did not need the money, and that dehave possession of the said premises. It is fendant was not going to bother plaintiff, and further understood and agreed that until the that at sundry and divers times since the payments are fully made as above agreed and making of said contract, and in the summer set out, the legal title to and ownership of of 1905, defendant made oral extensions upthe premises before described shall be and on the payments due on said land, and that remain in the party of the first part. Noth- defendant never at any time demanded any ing herein contained shall prevent said sec-payment or payments upon said contract, or ond party from paying in any year or years, in any way notified plaintiff that said conmore than the sums above stated, and hav- tract was terminated or forfeited. (8) That ing said extra payments applied upon said the plaintiff never at any time or in any mandebt. This contract shall not be assignable ner abandoned or terminated said contract, by the second party without the written con- or notified the defendant of any abandonment sent of the said party of the first part. This of said contract, and that neither the plaincontract shall extend to and be obligatory up- tiff nor defendant at any time treated said on the heirs of both parties hereto." The contract as abandoned or at an end. (9) decision of the learned circuit court contains That plaintiff's possession of said land now the following findings of fact: "(1) That at is, and has been at all times, under and by |