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law in case of writs of error. 2 Stat. at L. 244. Jurisdiction in such cases is given to the appellate court by the appeal or writ of error, as the case may be, which ceases to exist, even if regular, when the appeal or writ of error is dismissed, or if not regular in essential particulars, then jurisdiction does not attach for the purpose of affirming the decree upon the merits. 1 Stat. at L. 184. Argument to support these conclusions is not necessary, as they are selfevident, but inasmuch as the case must be remanded for a new hearing, it becomes necessary to examine some of the questions which the anomalous proceedings present for considera

tion.

Most of the claims of the interveners were for stores, materials for repairs, or for labor and supplies furnished to the steamer, either at the request of the master or at the request of one or both of the owners, in the home port of the vessel. More than half a century ago this court decided that where repairs and supplies are furnished to a ship in her home port, or in a port of the State to which the ship belongs, that no maritime lien is implied, nor any other lien unless it is given by the local law, by which the rights of the parties in such a case is altogether governed. The General Smith, 4 Wheat., 218*] 443. *Where necessary repairs have been made or necessary supplies furnished to a foreign ship, or to a ship in a port of a State to which the ship does not belong, the general maritime law, as all agree, gives the party a lien on the ship itself for his security, which may be enforced in the admiralty by a proceed ing in rem; but the court decided, in the case before referred to, that as to such repairs and supplies furnished to a ship in her home port, or in a port of the State to which the ship belongs, the case is governed by the local law, and that no lien arises unless given by the local law. All the Federal Courts were governed by those rules for years, and little or no difficulty arose in practice, as most or all of the States enacted laws giving a lien for the protection of material men in such cases, and this court adopted a rule authorizing a proceeding in rem against domestic ships, "where by the local law a lien was given to secure the payment of contracts in such cases for supplies, repairs, or other necessaries." Since that time, however, that rule has been repealed and a new one adopted in its place, which does not authorize a proceeding in rem, except where there is a claim founded on a maritime lien against a foreign ship, or against a ship in a foreign port, or the port of a State other than that to which the ship belongs. The Lulu, 10 Wall. 192, 19 L. ed. 906; The Belfast, 7 Wall., 644, 19 L. ed. 272; Leon v. Galceran, 11 Wall., 191, 20 L. ed. 76; Steamboat Co. v. Chase, 16 Wall., 533, 21 L. ed. 372; The St. Lawrence, 1 Black, 522, 17 L. ed. 180. Attempts were made by the States to obviate the embarrassment which grew out of the repeal of that rule, and the adoption of the new rule withdrawing the use of the process in rem from the District Courts to enforce the payment of claims for repairs and supplies furnished to domestic ships, but this court decided in several cases that the State Legislatures could not create a maritime lien, nor could they confer jurisdiction upon a state court to enforce such a lien by a suit or proceeding in rem as practiced in the admiralty courts. The Moses

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Taylor, 4 Wall., 430, 18 L. ed. 401; The Hine v. Trevor, 4 Wall., 571, 18 L. ed. 456; The Belfast, supra; Steamboat Co. v. Chase, supra; Leon v. Galceran, supra.

*Much embarrassment has existed [*219 ever since the old twelfth admiralty Rule was repealed, as the new rule makes no provision to enforce the payment of contracts for repairs and supplies furnished to domestic ships, except by a libel in personam. Repeated judicial attempts have been made to overcome the difficulty, none of which have proved satisfactory, because they failed to provide a remedy in the admiralty by a proceeding in rem. Inconveniences of the kind have been felt for a long time, until the Bench and the Bar have come to doubt whether the decision that a maritime lien does not arise in a contract for repairs and supplies furnished to a domestic ship is correct, as it is clear that the contract is a maritime contract, just as plainly as the contract to furnish such repairs and supplies to a foreign ship or to a domestic ship in the port of a State other than that to which the ship belongs. Abb. Ship., pp. 143, 148. Such a remedy is not given even in the latter case, unless the repairs and supplies were furnished on the credit of the ship, and it is difficult to see why the same remedy may not be given in the former case if the repairs and supplies were obtained by the master on the same terms. 5 Am. L. Rev., 612; 7 Am. L. Rev., 8; The St. Lawrence, supra; The Harrison, 2 Abb., U. S., 78; The Belfast, supra. These and many other considerations have had the effect to create serious doubts as to the correctness of the decision made more than fifty years ago, that a maritime lien does not arise in such a case. The General Smith, 4 Wheat., 443.

Expressions, however, to the same effect are found in other opinions of this court, and inasmuch as the question is not satisfactorily put in issue in the pleadings in this case, and does not appear to have been directly presented to the Circuit Court by either party, the court here is not inclined to enter more fully into the consideration of it at the present time.

None of the interveners alleged in direct terms that they had a maritime lien upon the steamer or the proceeds in the *registry [*220 of the court. Many libels of intervention were filed subsequent to the sale of the steamer, and some of them contain a prayer that the court will decree the payment of the claim of the libelant, with privilege on the steamer or the proceeds, but in no case does the libelant allege in terms that the contract set forth in the libel constitutes a maritime lien upon the steamer or the proceeds in the registry of the court, nor does the libelant pray for process to enforce any such lien.

Doubtless the maritime lien is, in many cases, well described as a privilege in the thing, but the state law, which cannot be enforced in the admiralty, also gives material men a privilege or lien in such cases, and in view of that fact it may well be questioned whether the allegation in the libels is sufficient to apprise the owners of the specific nature of the interest which the libelants claim in the proceeds, as the rule of decision in the Federal Courts has been for many years that a maritime lien does not arise in such a case. Any person having an interest in the proceeds may intervene pro interesse suo, but he ought to allege enough to

apprise the owner of the nature of the interest, writers, if they have accepted the abandonment claimed. 43d Admiralty Rule, Rev. Code Prac., may also appear and defend against any claims arts. 3273, 3274; Rev. Stat. La., 604.

Most or all of the claims were referred to a commissioner to report a tableau of distribution, and no exception was taken to the order of the court appointing the commissioner. He decided that none of the claims, except those for seamen's wages, constituted a maritime lien, and none of the libelants excepted to the report upon that precise ground. On the contrary, they seem rather to have acquiesced in that part of. the report; and in the view adopted by the district judge, that it was competent for him to decree that the respective claims should be paid out of the proceeds in the registry of the court, irrespective of the question whether the claimants had or had not any maritime lien or other legal interest in the same. Such must, it would seem, have been the view of the district judge, 221*] as he ultimately *confirmed the report and directed the proceeds to be paid to two claimants, both of whom were libelants in personam and judgment creditors of the owners. By confirming the report he decided that none of the libelants whose claims were for repairs and supplies had any maritime lien, but in the decree ordering the payment of the two claims he departed from the report of the commissioner, as the latter decided that, inasmuch as opposition was made by the owners, the proceeds could not be distributed among the interveners who had no maritime liens. Apparently the district judge must have been of the opinion that the proceeds were subject to his order of distribution among the creditors of the owners, or that the two claimants acquired some right or interest in the proceeds, either by their judgments against the owners or by virtue of the proceedings under the garnishee process against the clerk as the registrar of the District Court. Beyond doubt maritime liens upon the property sold by the order of the admiralty court follow the proceeds, but the proceeds arising from such a sale, if the title of the owner is unincumbered and not subject to any maritime lien of any kind, belong to the owner, as the admiralty courts are not courts of bankruptcy or of insolvency, nor are they invested with any jurisdiction to distribute such property of the owner, any more than any other property belonging to him, among his creditors. Such proceeds, if unaffected by any lien, when all legal claims upon the fund are discharged, become by operation of law the absolute property of the owner. Brown v. Lull, 2 Sumn. 443; Sheppard v. Taylor, 5 Pet., 675; The Europa, Bro. & Lush., pp. 87, 91; The Amelie, 2 Cliff., 448, 6 Wall., 30, 18 L. ed. 809.

adverse to their interest in the property, but a person who has merely a collateral interest in some question involved in the suit and has no actual concern in the subject-matter of it, cannot be allowed to intervene in the proceedings. Conkl. Prac. (5th ed.), 570; Stratton v. Jarvis, 8 Pet., 4; The Killarney, Lush., 430; Will. & Br. Adm. Jur., 199; The Julindur, 1 Spinks, 75; The Louisa, Brown. & Lush., 59; The Caledonia, Swab., 17; The Mary Anne, 1 Ware, 108. Where the property is already under arrest and a second or subsequent suit in instituted, it is not necessary to take out a second warrant of arrest, as a citation in rem is sufficient, instead of a warrant, commanding the marshal to cite all persons who have or claim to have any right, title or interest in the property, to enter an appearance in the cause on or before the day therein named, the service of which is sufficient to protect the rights of the intervener. Notice to the owners in some form must be given in such cases, else the decree will not conclude the owners. Nations v. Johnson, 24 How., 205, 16 L. ed. 632; 43d Adm. Rule.

Decided cases may be found which afford some support to the proposition that the proceeds in the registry of the court, if the lien claims are all discharged, may be distributed equitably among the intervening creditors of the owners, but the court is of the opinion that the rule that the proceeds in that state of the case belong to the owner is correct in principle, and that the weight of authority is in its favor, notwithstanding those cases, of which the following is the one most frequently cited. The John, 3 C. Rob., 290. But in that case there was no opposition by the owners, nor was the question much considered. Directly opposed to that case is the case of The Maitland, 2 Hagg. Adm., 253, in which the admiralty court re- [*223 fused to follow it, remarking that there is no solid distinction between original suits and suits against the proceeds, where there is opposition. Mere remnants, if unclaimed by the owner, may stand upon a different footing, and it is upon that ground that the admiralty courts have sometimes decreed the payment of small unclaimed sums to a creditor of the owner having a clear equity, to prevent the same from being indefinitely impounded in the registry of the court. Exactly the same point was decided, in the same way, in the case of The Neptune, 3 Knapp, P. C. 111, in which all of the authorities to that time were carefully examined. Where the ship is sold, the proceeds are in the hands of the court, which holds the fund in trust, and the court in the following case added that the owner is in some sense entitled to the same, but finally decided that inasmuch as he cannot obtain the fund without the order of the court, that it cannot be attached under the garnishee process. The Wild Ranger, Brown. & Lush., 88.

Subsequent to the seizure any person may enter an appearance to protect any interest he may have in the property, or he may commence a second or subsequent suit to enforce any claim he may have against it, or he may take legal measures to prevent the release of the property under arrest, or to prevent the payment of the Supplemental suits in the nature of a suit in 222*] proceeds out of the *registry. 43d Adm. rem may unquestionably be entertained in faRule; Wms. & Br. Adm. Jur., 229. Defense may vor of parties having an interest in the probe made to a suit in rem by any person who has ceeds, as was held by this court in the case of an interest in the thing seized; as, for exam- Andrews v. Wall, 3 How., 573, in which this ple, a mortgagee may appear and defend a sal- court said that such suits may be entertained vage or wages suit, or the assignee of a bank- to ascertain to whom the proceeds belong and to rupt owner may appear and contest any claim deliver the same over to the parties who estabagainst the property of the bankrupt, or under-'lish the lawful ownership to the property, as in

the case of the sale of a ship to satisfy claims for seamen's wages, or for a bottomry bond, or for salvage services, or to discharge a lien for repairs and supplies, the rule being that after the original demand is paid if a surplus remains in the registry, the court may determine to whom the same belongs. Other lien claims are also mentioned for which the ship may be sold, but it is unnecessary to recapitulate them, as those enumerated are sufficient to explain the principle adopted by the court. U. S. v. Casks of Wine, 1 Pet., 547; Schuchardt v. The Angelique [Babbage], 19 How., 241, 15 L. ed.

626.

Different views have in some few instances 224*] been adopted by the District Courts, but the right of the court to decree that third persons who could not have proceeded against the property in rem may recover a proportion of the proceeds to satisfy their claims against the owner, in a case where the owner appears and opposes the application, seems to be repugnant to every sound principle of judicial proceeding, and it is certainly opposed to the great weight of authority. 2 Pars. Ship., 231; The New Eagle, 2 W. Rob., 441; Gardner v. The New Jersey, 1 Pet. Adm., 226; Clement v. Rhodes, 3 Add. Ecc., 40.

Reference is sometimes made to the case of Place v. Potts, 8 Exch., 705, 10 Exch., 370, 5 H. L. Cas., 383, as supporting the opposite rule, but the court here is not able to regard the case as having any such tendency, as the judgment in that case in the court of original jurisdiction was founded almost entirely upon the decision of the admiralty judge in the case of The Dowthorpe, 2 W. Rob., p. 90, which is nothing but a simple apportionment of the different liens upon the ship and freight.

Suppose that is so, still it is contended that the appellees acquired the right of preference in the fund by virtue of the proceedings under the garnishee process, as more fully set forth in the record; but the court is entirely of a different opinion, for several reasons:

1. Because the fund, from its very nature, is not subject to attachment either by the process of foreign attachment or of garnishment, as it is held in trust by the court to be delivered to whom it may belong, after hearing and adjudication by the court. The Albert Crosby, 1 Lush., R., 101; The Wild Ranger, Brown & Lush., 8; 1 Chit. Archb. Pr. (11th ed.) 702.

2. Because the proceeds in such a case are not by law in the hands of the clerk nor of the judge, nor is the fund subject to the control of the clerk. Moneys in the registry of the Federal Courts are required by the Act of Congress to 225*] be deposited with the Treasurer of the United States, or an assistant treasurer or des

ignated depositary, in the name or to the credit of such court, and the provision is that no money deposited as aforesaid shall be withdrawn except by the order of the judge or judges of said courts respectively, in term time or vacation, to be signed by such judge or judges and to be entered and certified of record by the clerk. 17 Stat. at L., . Regulations substantially to the same effect have existed in the Acts of Congress for more than half a century, and within that period it is presumed that no proceeding to attach such a fund by a creditor of the owner has ever been sustained. 3 Stat. at L., 395.

3. Judgments were never a lien upon personal

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property, unless made so by attachment under mesne process, which is all that need be said in respect to the proposition that the appellees acquired a right of preference to the proceeds in the registry of the court by virtue of their judgment against the owners.

Mention should also be made of another error which ought, if possible, to be promptly corrected. Where an appeal is taken from the decree of the District Court in a proceeding in rem to the Circuit Court, the property or proceeds thereof follows the cause into the Circuit Court where it remains until the litigation is ended, as it does not follow the cause into the Supreme Court. The Collector, 6 Wheat., 194; The Seneca, Gilp., 34; The Grotius, 1 Gall., 503; Montgomery v. Anderson, 21 How., 388, 16 L. ed. 161; Conkl. Pr. (5th ed.) 569. Application was made to the District Court to send up the proceeds, and the record shows that the court overruled the same, which is a plain error and one which ought to be promptly corrected, unless the proceeds have been paid over as directed by the court, and if so, they should be recalled, if practicable, and restored to the registry, and then sent up to the Circuit Court, as the Circuit Court in such cases executes its own decree.

Imperfectly tried, as the case has been, the court here is of the opinion and directs that leave be given to both parties *to amend [*226 their pleadings, and if need be to take further proofs. Error was also committed by the Circuit Court in affirming the decree of the District Court, as it is plain it should have been reversed.

For these reasons the decree of the Circuit Court is in all things reversed, and the cause remanded for further proceedings in conformity to the opinion of the court.

*THE CITY OF MEMPHIS, Appt., [*289

v.

TALMADGE E. BROWN, Surviving Partner of the late firm of T. E. Brown & Co.

(See S. C., 20 Wall., 289–322.) Specific performance, when not decreed-rule of damages agreement, when discharged guaranty of payment-speculative damages -securities follow principal debt-modification of contract-exception to master's report.

1. Specific performance is never decreed where

the party can be otherwise fully compensated.

2. Where a person became bound to return certain bonds, the damages for which he is liable for a failure to fulfill such agreement, is the sum which would enable the other party to buy the bonds which he failed to return."

agreement to release based upon the performance

3. Where there is no present release, but an of considerations specified, the performance failing, the agreement to release goes with it.

4. Upon guaranty of payment and not of collection merely, a suit may be commenced against the guarantor without any previous suit against the principal.

5. Where a particular mode in which payment was expected to be obtained. fails, the debtor cannot allege the illegality of the proposed detail of payment as a defense to himself.

6. Damages, which are not in their nature capable of legal computation, and there is no legal standard by which they can be fixed and which are shadowy, uncertain and speculative, cannot be al

lowed.

7. The right to a fund for redemption of a bond, to enforce it by mandamus, or to ask damages for

Its violation, is an incident of the bond attached to and inseparable from it. There cannot be a cause of action in one to recover the whole face of the bond and interest, and in another to recover damages for the want of a collateral security to the bond.

ac

8. Where the duty of the collection of an count is imposed upon a party by express terms of a contract, he cannot recover from the other party

for services for its collection.

9. Where a contract is made by a municipality in the mode specifically provided by local law by ad vertising for proposals, etc., it cannot be modified by the officers of the municipality, without its assent to the change.

10. Where no exception was taken to an order of reference to a master to take and state an account, and no exception was taken before the master, and all the evidence was presented that was desired by either party, and full justice in this respect was attained, the objection that the master virtually de: cided the case instead of the court, is not well grounded.

[No. 226.]

Argued Mar. 11, 1874. Decided Apr. 6, 1874.

APPEAL from the Circuit Court of the Unit

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into another contract with Forrest, Mitchell & On the 16th of July, 1867, the City entered Co., for paving certain other streets of the City. The payment for this work was to be made in bonds of the City, payable in 5, 10 and 15 years, with coupons attached, "principal and interest guarantied and provided for by a sinking fund set aside for that purpose, bonds to be taken at par."

the City, ultimately came into the hands of T. Both of these contracts, with the sanction of E. Brown & Co., as the contractors for paving.

the paving, produced embarrassment on the part The failure of the property holders to pay for of Brown & Co., for which they sought relief by an application to the City. To give this aid, the City, in August, 1868, loaned to Brown & Co. its bonds to the nominal amount of $99,000. These

ed States for the Western District of Ten- fifty cents on the dollar. The report states that

nessee.

The case is stated by the court. Messrs. J. D. McPherson, J. M. Carlisle and Wm. M. Randolph, for appellant.

Messrs. S. Sibley, Geo. B. Corkhill and P. Phillips, for appellees.

Mr. Justice Hunt delivered the opinion of

the court:

bonds were worth, at that time, not to exceed the bonds were loaned with the understanding that they might be sold for what they would bring, and that other bonds might be bought to replace them when they should mature. In November, 1868, another application of the same character was made for $175,000 of the city upon the condition that Brown & Co. should rebonds. This loan was authorized by the City the amounts due upon the first paving contract, lease the City from its guaranty of payment of Mem-known as the cash contract, unless it should be decided by the courts of the last resort that the property holders are not liable for such payBrown & Co. received $140,000 in city bonds. ment. Under this resolution, after much delay, The remaining $35,000 of bonds, Brown & Co. frequently and earnestly applied for, but were not able to obtain. In their stead were issued to them letters from the Mayor, stating that they were entitled to bonds to that amount as soon as they could be signed and made ready for delivery. In two instances at least, that of Barrett and of Venable, the City refused to comply The bonds were issued to the latter, after great with the agreement contained in their letters. delay and numerous applications, and with the transaction of $5,000, the holder lost about $300. January coupons cut off, by which means, in a

In 1869, Brown & Company commenced their suit at law, to recover from the City of phis, certain amounts claimed to be due to them upon two contracts for paving certain portions of the City. At a subsequent period, to wit: in November, 1870, the City filed its bill in equity against Brown & Company, alleging various matters of equitable defense, and asking that they be restrained from proceeding in their suit at law. To this bill Brown & Company made answer, and also filed their cross-bill against the City. In November, 1870, all proceedings in the suit at law were ordered to be stayed, to the end that the matters in controversy be determined in the equity suit.

At about the same time, the cause being at issue and coming on for a hearing, and the action at law by consent of the parties being joined therewith, it was, upon the motion of Brown's solicitors, referred to A. G. Mitchell, a master in chancery, to take proof upon and hear and report to the court upon the state of accounts between the parties upon all the matters involved in the bill and cross-bill. The order of reference directed an examination into twenty-seven matters as specified therein, embracing all the points of law and matters of fact arising in the case, and the master was directed to report the proofs and his conclusions, as soon as practicable.

Brown & Co. from the City of Memphis, the sum The master reported that there was due to of $496,352.69. For this balance, less $25,608, deducted by the court, a decree was ordered to be entered. It is from this decree that the present appeal is brought.

The facts will be more specifically referred to as the several points are considered.

I. The first three assignments of error are based upon a single idea, to wit: that there was error in decreeing that Brown & Co could discharge themselves from their obligations to return the bonds loaned to them by paying their market value; that the same error existed in regard to the bonds overpaid them on the bond contracts, and also in relation to the bonds paid to them on the cash contracts.

On the 2d day of September, 1871, the master made his report in which he gives a history of the paving contracts, and of the proceedings under them. It appears from this report, that on the 11th of March, 1867, the City contracted with Taylor, McBean & Co., for the paving of certain streets to be paid for in cash, the one half when completed in certain portions, the As to each class it is insisted that the bonds remainder in thirty, sixty and ninety days. By in specie should have been returned or their this contract it was provided that the expense nominal face value allowed to the City. The of the work should be paid by the adjoining | loan was of 240 bonds of $1,000 each. At the owners at the times mentioned, and the City time of making the loan there was due to 20 WALL

Brown & Co. on the paving contracts several | money it can now place in its treasury the hundred thousand dollars. This indebtedness bonds which Brown & Co. fail to return. It is the City did not wish to pay, or was unable to difficult to see that the damage sustained can pay. To meet the emergency the City loaned be beyond that amount. its bonds to Brown & Co., to be returned in 18 months with interest.

The argument is, that by their contract 304*] Brown & Co. *agreed to return the bonds to the City, and that a specific performance of this agreement is necessary to do justice to the City.

Conceding the power of the court to compel the specific performance of a contract relating to personal property, this does not appear to be a case justifying its exercise. Specific performance is never decreed where the party can be otherwise fully compensated. Story, Eq., secs. 714-730.

If Brown & Co. have received bonds of the City, which they are bound to return, and do not return, what damage does the City suffer? The face of the bonds and interest, it is said; as, if they run to maturity, the City will then be liable for the payment of the whole amount. Not so. We are not to inquire what may be the damage to the City eighteen years hence, but what it suffers at the present time by the default of Brown & Co. If Brown & Co. should now be decreed to pay the face of the bonds, instead of an indemnity, the City would make an actual profit. Suppose the amount of bonds in question to be $200,000. With the sum of $100,000 the City could now purchase the whole amount of bonds supposed to be in issue, and retain as a premium or profit the remaining $100,000. In his brief, the appellant's counsel says that it is not material that the very bonds loaned shall be returned, so that an equal amount, with corresponding coupons, are returned. That this equal amount may now be purchased by the City at fifty cents on the dolfar would seem to be conclusive, that when Brown & Co. are charged with the bonds at fifty cents on the dollar and the City is credited with that sum, that the damage of the City for the item in question is properly assessed.

But it is said that the City has not the money at command to buy these bonds; that it cannot thus indemnify itself and, therefore, its loss

is the face of the bonds. This consideration can have no legitimate influence. A rule of law is based upon principle, upon sound considerations of justice and public policy, and usually 305*] as manifested by the precedents *and authorities. It is the same for all classes and conditions. None are so high as to be above its claims; none so low as to be beneath its protection. It will be a sad era in the history of any country when the application of a rule of law shall depend upon the wealth or the poverty of a party to a suit; upon his wealth, which would thus enable him to increase that wealth, or his poverty, which would be thereby aggravated.

No court and no government can protect against the misfortunes of poverty. The unfortunate mortgagor who sees his farm sold by his rigid creditor for half its value, for the want of money to redeem it, receives our sympathy, but the rules of law cannot be altered or suspended to aid him. So, in the case before 'us, the law is the same, whether the City of Memphis is in funds or whether it has no funds. The value of its bonds in the market is fifty cents on the dollar. With that amount of

Whether the City had the legal right to loan its bonds does not seem to be a practical question. It did loan them, and the contractors received them. If not a loan, the transaction was a gift, which will not be pretended; or it was a loan of so much money as was realized by their sale. The defense of usury is not set up in the pleadings, or apparently claimed on the trial, and it cannot now be urged. We assume the issue of the bonds to have been a legal transaction, and think the rule of damages for their non-return was properly fixed by the master.

In Dana v. Fiedler, 12 N. Y., 48, the court say: "Complete indemnity requires that the vendee shall receive that sum which, with the price he had agreed to pay, would enable him to buy the article which the vendor had failed to deliver."

In Griffith v. Burden, 35 Iowa, 138, being a suit for the conversion of a state bond, the court say: "Another rule, equally well *grounded and more frequently applied, [*306 is, that the damages ought to be such as will compensate the party for his loss. In this case the plaintiff has lost his bond. Another like bond of precisely equal value to the plaintiff can be purchased in the market for the amount of the verdict in this case, the market value. Hence the verdict compensates him for his loss, and is the precise measure of damages."

These are the general rules upon the subject, and that they control the question in the case before us, sufficiently appears from the following authorities. Griffith v. Burden, supra; Wheeler v. Newbould, 5 Duer, 37; Brown v. Ward, 3 Duer, 660; Brightman v. Reeves, 21 Tex., 70; Tracy v. Talmage, 14 N. Y., 162-191.

II. It is insisted, second, by the appellants that Brown & Co. cannot maintain a suit on the paving contracts, for the reason that by the resolution and contract of November 20, 1868, Brown & Co. released the City from all liabilities upon the paving contract, unless it should be decided by the courts of last resort that the property holders are not liable to pay for the

same.

That contract is in the words following, viz.: State of Tennessee, Shelby County:

This agreement, made and entered into this 20th day of November, 1868, between the Board of Mayor and Aldermen of the City of Memphis, through the Mayor, of the first part, & T. E. Brown & Co., contractors for the Nicholson pavement, of the second part, witnesseth: That, Whereas, the party of the first part, in session on the 18th day of November, 1868, did pass the following resolution, to wit: Resolved, etc., That the City will loan Messrs. T. E. Brown & Co. the contractors of the Nicholson pavement, one hundred seventy-five thirty-year one-thousand dollar pavement bonds for eighteen months, upon condition that said contractors will place in the hands of the city attorney, paving bills against the property holders to the amount of the face value of said bonds; and upon the further consideration that said contractors will release the City from all liabilities upon said paving contract, unless it should be decided by the courts of last resort that the property

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