[15] that accrue after the action is *brought. The right to recover damages accrues upon the breach of the contract. But the rule of damages in such cases is what would have come to the plaintiff under the contract had it continued, less whatever the plaintiff might earn by the exercise of reasonable and proper diligence on his part; and, of course, in ascertaining this, we must look to a time subsequent to the breach, and in some cases to a time subsequent to the bringing of the suit. Nor is it any objection to the recovery, that in this case the damages are difficult to ascertain, depending upon contingent and uncertain events. There are many cases in which the damages are uncertain and difficult to ascertain, and, in fact, cannot be ascertained with certainty, but this has never been regarded as a sufficient reason for denying all relief." 7 Lea, 406.

These cases appear to this court to rest upon sound principles, and to afford correct rules for the assessment of the plaintiff's damages in the case at bar.

The legal effect of the contract sued on, as has been seen, was that the defendant promised to pay the plaintiff certain wages, and to furnish him with certain supplies, so long, at least, as his disability to work should continue; and the consideration of these promises of the defendant was the plaintiff's agreement to do for the defendant such work as he was able to do, and his release of the defendant from all liability in damages for the personal injuries which had caused his disability.

The complaint alleged, and the plaintiff at the trial introduced evidence tending to prove, that by those injuries he was permanently disabled; that he was always ready and offered to do for the defendant such work as he was able to do, and labored at that work for such reasonable time as he was able to work and bound to work under the contract: and that the defendant, without any reasonable ground therefor, denied its obligation to pay the plaintiff the stipulated wages longer than suited its pleasure, and, for six months before the commencement of the action, disregarded the contract, and refused to abide by it, and entirely abandoned the contract, and dismissed the plaintiff from its services.

tract to him at the time of the breach, including all the damages, past or future, resulting from the total breach of the con tract. The difficulty and uncertainty of estimating damages that the plaintiff may suffer in the future is no greater, in this action of contract, than they would have been if he had sued the defendant, in an action of tort, to recover damages for the personal injuries sustained in its service, instead of settling and releasing those damages by the contract now sued on.

[16] *If these facts were proved to the satisfaction of the jury, the case would stand thus: The defendant committed an absolute breach of the contract, at a time when the plaintiff was entitled to require performance. The plaintiff was not bound to wait to see if the defendant would change its decision, and take him back into its service; or to resort to successive actions for damages from time to time; or to leave the whole of his damages to be recovered by his personal represen tative after his death. But he had the right to elect to treat the contract as absolutely and finally broken by the defendant; to maintain this action, once for all, as for a total breach of the entire contract; and to recover all that he would have received in the future, as well as in the past, if the contract had been kept. In so doing, he would simply recover the value of the con

In assessing the plaintiff's damages, deduction should, of course, be made of any sum that the plaintiff might have earned in the past or might earn in the future, as well as the amount of any loss that the defendant had sustained by the loss of the plaintiff's services without the defendant's fault. And such deduction was provided for in the instruction asked by the plaintiff and refused by the judge.

The questions of law presented by the defendant's bill of exceptions, allowed by the circuit court of the United States, are substantially like those above considered, and require no further notice.

The result is that the judgment of the circuit court of appeals, sustaining the demurrer to the complaint, and reversing the judg ment of the circuit court of the United States, must be reversed; that the judgment of the circuit court of the United States [17] must also be reversed, because of the rulings excepted to by the plaintiff; and that the case must be remanded to that court, with directions to set aside the verdict and to order a new trial.

Judgments of the Circuit Court of Appeals and of the Circuit Court of the United States reversed, and case remanded to said Circuit Court for further proceedings in conformity with the opinion of this court.

BLANCHE K. TOWSON, Edith G. Graham,

Nannie C. Towson, J. C. Kennedy Campbell, Mary L. I. Campbell, and Mary Kennedy Campbell, Committee of William H. Campbell, Appts.,


CHRISTIANA V. MOORE, Frederick L. Moore, Julia A. Russell, Alexander W. Russell, Gertrude Fry, and Edith Fry.

(See S. C. Reporters ea. 1.-25.)

Burden of proof or undue influence-gift from parent to child-recital in declaration of gift.

1. The burden of proving undue Influence in a gift from an aged woman to daughters with whom she lives alternately rests upon the plaintiff who brings the action to set the gift aside.


In case of a gift from a parent to a child, the circumstances should be vigilantly and to carefully scrutinized ascertain whether there has been undue Influence in procuring It but it cannot be deemed prima facie void; and in order to set it aside, the court must be satisfied that It was not the voluntary act of the donor.

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3. A recital in a written declaration of gift | R. 5 Eq. 376; Teegarden v. Lewis, 145 Ind.
to the donor's daughters, that it was made 98.
"voluntarily, without suggestion from any. From the relation of the parties, no such
one," and the failure to disclose the gift to construction as claimed by the complainants
other relatives, will not create a suspicion of is placed upon the acts of those who occupy
somewhat similar relations with the donor
to those which existed here.

undue influence, where the donor had pre-
vlously learned of the charge by one of the
other relatives, that she had been unduly in-
fluenced in making a will.

[No. 198.]

Argued January 25, 26, 1899. Decided
ruary 20, 1899.

Hunter v. Atkins, 3 Myl. & K. 113; Sayre v. Hughes, L. R. 5 Eq. 376; Leddel v. Starr, 20 N. J. Eq. 274; Conley v. Nailer, 118 U. S. 127, 30 L. ed. 112; Mackall v. Mackall, Feb-135 U. S. 167, 34 L. ed. 84; Murray v. Hilton, 8 App. D. C. 281; Hepworth v. Hepworth, L. R. 11 Eq. 10; Saufley v. Jackson, 16 Tex. 579; Millican v. Millican, 24 Tex. 426; Eakle v. Reynolds, 54 Md. 305; Muir v. Miller, 72 Iowa, 585; Orr v. Pennington, 93 Va. 268.

PPEAL from a decree of the Court of
Appeals of the District of Columbia af-
firming a decree of the Supreme Court of the
District dismissing a bill in equity of the
plaintiffs, who are the appellants in this
court. The bill was filed to set aside a cer-
tain gift made by Mary I. Campbell to her
two daughters, Christiana V. Moore and
Julia A. Russell, of United States bonds,
worth about $15,000. Affirmed.

See same case below, 11 App. D. C. 377.
The facts are stated in the opinion.
Messrs. Franklin H. Mackey, A. H.
Garland, and R. C. Garland, for appel-


Whenever any person stands in the relation of special confidence toward another, so as to acquire an habitual influence over him, he cannot accept from him a personal benefit without exposing himself to the risk, in a degree proportioned to the nature of their connection, of having it set aside as unduly obtained.

Adams, Eq. 7th Am. ed. 184; Boyd v. DeLa Montagnie, 73 N. Y. 498, 29 Am. Rep. 197; Story, Eq. Jur. § 310.

The party taking a benefit under a voluntary settlement or gift containing no power of revocation has thrown upon him the burden of proving that there was no deception or undue influence.

Coutts v. Acworth, L. R. 8 Eq. 558; Darlington's Appeal, 86 Pa. 512, 27 Am. Rep.


A gift obtained where a confidential relation exists is prima facie void, and the burden is on the donee to establish to the full satisfaction of the court that it was the free, voluntary, and unbiased act of the donor. Brooke v. Berry, 2 Gill, 83; Highberger . Stiffler, 21 Md. 338, 83 Am. Dec. 593; Todd v. Grove, 33 Md. 188; Pairo v. Vickery, 37 Md. 467; Cherbonnier v. Evitts, 56 Md. 276.

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+While arguing this case Mr. Garland was stricken with apoplexy and soon after died.

*Mr. Justice Gray delivered the opinion [17] of the court:

*This was a bill in equity, filed April 16, [18] 1896, in the supreme court of the District of Columbia, by children of Leonidas C. Campbell, the son of William H. Campbell, against the two daughters of William H. Campbell and against their husbands, who were also executors of the wills of William H. Campbell and of Mary I. Campbell, his widow and residuary devisee and legatee, to set aside a gift made by her to their two daughters, of thirteen United States bonds for $1,000 each (five bearing interest at four and a half per cent, and eight at four per cent) as having been obtained from her by undue influence of themselves and their husbands; and for an account, and for further relief.

After the filing of answers fully and absolutely denying the undue influence charged in the bill, and of a general replication, the case was heard upon pleadings and proofs, and a decree was entered dismissing the bill. The plaintiffs appealed to the court of appeals of the District of Columbia, which af firmed the decree. 11 App. D. C. 377. The plaintiffs then appealed to this court. The leading and undisputed facts of the case

were as follows:

William H. Campbell, an old resident of the city of Washington, died May 21, 1881, leaving a will dated March 16, 1878, and duly admitted to probate, by which, after reciting that he had provided for his son, Leonidas C. Campbell, by establishing him in business, he gave a legacy of $5,000 to each of his two daughters, Julia, wife of Alexander W. Russell, and Christiana, wife of Frederick L. Moore, and an annuity of $500 for life to his sister, Eloise A. Campbell; and devised and bequeathed all the rest and residue of his estate in fee to his wife, Mary I. Campbell, or, if she should not survive him, to his three children as tenants in common, the children of any child dying before him to take their parent's share; and appointed his son and his son-in-law Moore executors of his will. His son died August 15, 1878, and the testator, by a codicil dated September 7, 1878, and likewise admitted to probate, ratified and confirmed his will in all respects, except in appointing both his sons-in-law and one Maury executors thereof.

*His wife and daughters survived him. His [19]

son had died intestate, and leaving a widow, Mary K. Campbell, and seven children, six of whom were the plaintiffs in this bill. The seventh child had died, leaving two children, who were made defendants, but were never served with process or otherwise brought into the case.

the less necessary for us to go into a critical examination of the English chancery doctrine on this subject, for should the cases be found to countenance it, we should not be disposed to adopt or sanction the broad principle contended for, that the deed of a child to a parent is to be deemed prima facie void. It is undoubtedly the duty of courts carefully to watch and examine the circumstances attending transactions of this kind, when brought under review before them, to discover if any undue influence has been exercised in obtaining the conveyance. But to consider a parent disqualified to take a voluntary deed from his child without consideration, on account of their relationship, is assuming a principle at war with all filial, as well as parental, duty and affection, and acting on the presumption that a parent, instead of wishing to promote the interest and welfare [of], would be seeking to overreach and defraud his child. Whereas the presumption ought to be, in the absence of all proof tending to a contrary conclusion, that the advancement of the interest of the child was the object in view, and to presume the existence of circumstances conducing to that result." 12 Pet. 253, 254 [9: 1075].

After the death of her husband in 1881 Moore was her business agent; and she resided alternately with one or the other of her two daughters, living on affectionate and confidential terms with them and their husbands; and at the times of the gift in question, and of her death, was at the house of Mr. and Mrs. Moore, in Georgetown. She died August 6, 1893, aged ninety-one years, and leaving a will, dated May 26, 1882, and duly admitted to probate, by which, after some small legacies, she devised and bequeathed all the residue of her estate, in equal thirds, to her two daughters and the seven children of her deceased son, and appointed her sons-in-law, Russell and Moore, executors of her will.

Mr. Justice Story (who had concurred in that judgment) in the last edition of his Commentaries on Equity Jurisprudence, which underwent his revision, and which was published in 1846, after his death, stated [21] the doctrine on the subject as follows: "The natural and just influence which a parent has over a child renders it peculiarly important for courts of justice to watch over and protect the interests of the latter; and therefore all contracts and conveyances whereby benefits are secured by children to It was contended by the plaintiffs that the their parents are objects of jealousy, and if court of appeals erred in holding that the they are not entered into with scrupulous burden of proving undue influence was up-good faith, and are not reasonable under the on them; and it was argued that by reason circumstances, they will be set aside, unless of the confidential relations between the third persons have acquired an interest undonor and the donees the burden of proof was der them, especially where the original purshifted upon the latter to prove the validity poses for which they have been obtained are of the gift of the bonds. But the ruling perverted or used as a mere cover. But we of the court of appeals in this respect is are not to indulge undue suspicions of jealsupported by the decisions of this court, as ousy, or to make unfavorable presumptions will appear by an examination of those as a matter of course in cases of this sort." decisions. And he supported this statement by large quotations from the opinion of Mr. Justice Thompson in Jenkins v. Pye. 1 Story, Eq. Jur. (4th ed.) § 309.


*In the leading case of Jenkins v. Pye, 12 Pet. 241 [9: 1070], in which this court, at January term, 1838, declined to set aside for undue influence a deed of real estate made In Taylor v. Taylor, 8 How. 183 [12: 1040], by a daughter, shortly after coming of age, decided at January term, 1850, after the to her father, the court, speaking by Mr. Jus- deaths of Justices Thompson and Story, the tice Thompson, said: "The grounds mainly opinion of Mr. Justice Thompson in Jenkins relied upon to invalidate the deed were that v. Pye and the passage in Justice Story's being from a daughter to a father rendered Commentaries (omitting the last clause, it, at least prima facie, void; and if not void which was not in the earlier editions) were on this ground, it was so because it was ob-quoted by Mr. Justice Daniel as laying down tained by the undue influence of paternal the true rule upon the subject. While some authority. The first ground of objection expressions of that learned judge might seeks to establish the broad principle that a seem to construe those authorities too deed from a child to a parent, conveying the strongly in favor of presuming undue inreal estate of the child, ought, upon consid- fluence, the decision in that case, setting erations of public policy growing out of the aside a deed made by a daughter to her fathrelations of the parties, to be deemed void; er soon after her coming of age, ultimately and numerous cases in the English chancery proceeded upon overwhelming proof of undue have been referred to, which are supposed to influence, derived in part from the testimony establish this principle. It becomes of witnesses to significant facts; in part from

Upon the death of William H. Campbell, his executors for the purpose of paying the annuity bequeathed by him to his sister, set apart the aforesaid United States bonds, of the par value of $13,000, and kept them intact during the life of the annuitant. She died October 1, 1885, and the bonds then be came part of the residue of the estate, bequeathed to his widow, Mary I. Campbell. On October 5, 1885, the bonds were transferred to her on the books of the Treasury Department; and on the next day, October 6, 1885, their market value then being about $15,000, she made a gift of them in equal shares to her two daughters, Mrs. Russell and Mrs. Moore.

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It has since, more than once, been recog22]nized by this court, *that "the influence for which a will or deed will be annulled must be such as that the party making it has no free will, but stands in vinculis." Conley v. Nailor (1886) 118 U. S. 127, 134 [30: 112, 115]; Ralston v. Turpin (1889) 129 U. S. 663, 670 [32: 747, 750]. See also Mackall v. Mackall (1890) 135 U. S. 167, 172, 173 [34: 84, 87].

evidence conclusively showing that nearly made to the long intimacy between father all the statements in the deed itself were and son, the alleged usurpation by the latutterly false, and in part from a letter writ-ter of absolute control over the life, habits, ten to the father by the daughter a few days and property of the former, efforts to prebefore executing the deed and while they vent others during the last sickness of the were living under the same roof, which, as father from seeing him, and the subjection of the court declared, clearly appeared upon its the will of the father to that of the son, man. face to be "a fabrication, designed to conceal ifest in times of health, naturally stronger the very facts and circumstances which it in hours of sickness. A confidential relation palpably betrays," and "not the production between father and son is thus deduced, of an inexperienced girl, but of a far more which, resembling that between client and practised and deliberate author." attorney, principal and agent, parishioner and priest, compels proof of valuable consideration and bona fides in order to sustain a deed from one to the other. But while the relationships between the two suggest influence, do they prove undue influence?" In giving a negative answer to that question, the court affirmed the following propositions: "Influence gained by kindness and affection will not be regarded as undue, if no imposition or fraud be practised, even though it inIn Ralston v. Turpin, just cited, in which duce the testator to make an unequal and the object of the bill was to set aside deeds unjust disposition of his property in favor made to an agent by his principal, this court, of those who have contributed to his comfort speaking by Mr. Justice Harlan, recognized and ministered to his wants, if such dispothe rule of law that "gifts procured by sition is voluntarily made. Confidential reagents, and purchases made by them, from lations existing between the testator and their principals, should be scrutinized with beneficiary do not alone furnish any prea close and vigilant suspicion," and conceded sumption of undue influence. That that in the case then before the court the the relations between this father and his agent held such relations, personal and oth- several children, during the score of years erwise, to the principal, as would enable preceding his death, naturally inclined him him to exercise great influence over the lat- towards the one and against the others, is ter in respect to the mode in which his prop- evident and to have been expected. It would erty should be managed; that the principal have been strange if such a result had not trusted the agent's judgment as to matters followed; but such partiality towards the of business more than the judgment of any one, and influence resulting therefrom, are other man; and that he had an abiding con- not only natural, but just and reasonable, fidence in the agent's integrity, as well as in and come far short of presenting the undue his desire to protect his interests. Notwith-influence which the law denounces. Right or standing all this, the bill was dismissed, be- wrong, it is to be expected that a parent will cause the plaintiff had failed to show that favor the child who stands by him, and give the deeds were obtained by undue influence, to him, rather than the others, his property. but, on the contrary, it appeared by the great To defeat a conveyance under those circumpreponderance of the evidence that "al- stances, something more than the natural inthough their execution may have been influence springing from such relationship duced, not unnaturally, by feelings of friend- must be shown; imposition, fraud, imporship for, and gratitude to, the defendant tunity, duress, or something of that nature, [24] Turpin, the grantor acted upon his own in- must appear; otherwise, that disposition of dependent, deliberate judgment, with full property which accords with the natural inknowledge of the nature and effect of the clinations of the human heart must be susdeeds. It was for the donor, who had suffi- tained." 135 U. S. 171-173 [34: 86, 87]. cient capacity to take a survey of his estate, and to dispose of it according to an intelligent, fixed purpose of his own, regardless of the wishes of others, to determine how far such feelings should control him when selecting the objects of his bounty." 129 U. 8. 675-677 [32: 752].

The principles established by these authorities may be summed up as follows: In the case of a child's gift of its property to a parent, the circumstances attending the transaction should be vigilantly and care fully scrutinized by the court, in order to ascertain whether there has been undue influence in procuring it; but it cannot be deemed prima facie void; the presumption is in favor of its validity; and, in order to set it aside, the court must be satisfied that it was not the voluntary act of the donor. The same rule as to the burden of proof applies with equal, if not greater, force to the case of a gift from a parent to a child, even if the effect of the gift is to confer upon a child with whom the parent makes his home and is in peculiarly close relations a larger share of the parent's estate than will be received by other children or grandchildren.

In Mackall v. Mackall, above cited, in which it was attempted to set aside a deed from a father to his son, it appeared that for twenty years the father and mother had been separated, and this son had remained with the father, taking his part, and assisting him in his affairs, and the other children had gone with the mother and taken her part in [28] the family differences. This court, in the opinion delivered by Mr. Justice Brewer, speaking of the contention that the execution of the deed was induced by undue influence, said: "In this respect, reference was

Applying these principles to the case at bar, it is beyond doubt that the relations in which Mary I. Campbell stood to her daughters and their husbands afford no ground for putting upon them the burden of disproving undue influence.

Upon the question whether undue influence was in fact exercised, the record contains a mass of conflicting testimony, which is satisfactorily considered in the opinion of the court of appeals, and which it would serve no useful purpose to discuss anew.

A series of decisions of this court has established the rule that successive and concurrent decisions of two courts in the same case, upon a mere question of fact, are not to be reversed, unless clearly shown to be erroneous. This rule, more often invoked in admiralty cases, is yet equally applicable to appeals in equity. Dravo v. Fabel, 132 U. S. 487, 490 [33: 421, 422]; Stuart v. Hayden, 169 U. S. 1, 14 [42: 639, 644]; Baker v. Cummings, 169 U. S. 189, 108 [42: 711,716].

There is one document, however, in the record, which was the subject of so much ar[25] gument at the bar, that a brief notice of it, and of the circumstances under which it was drawn up, will not be out of place.

The defendants, at the hearing, introduced in evidence a writing signed by Mary I. Campbell, and in the following terms: D. C., October 1885. I

have to-day voluntarily, without suggestion from anyone, given to my two daughters the 4% and 4 per cent United States bonds coming to me from the estate of my husband, amounting to thirteen thousand dollars at par, thus equaling their share with the an:ount received by their brother and his family." There was evidence tending to show that this writing was drawn up and signed at the request of Mrs. Moore, and delivered to her, on the day of its date, and had since been kept by her.

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It was argued, in behalf of the plaintiffs, that the procuring of this paper, containing the unusual and suspicious declaration that the gift of the bonds was made "voluntarily, without suggestion from anyone," together with the long concealment of the paper from the plaintiffs, was strong evidence of an intent to back up a fraudulent transaction.

But this argument is fully met by evidence that the reason for the execution of this paper was that, three or four years before, Mary K. Campbell, the mother of the plaintiffs, had made an unfounded charge that Mrs. Moore had by undue influence procured the insertion of the legacies to herself and her sister in her father's will, and had only desisted from that charge upon receiving from Mary I. Campbell a written statement that it was “false in every particular." Under such circumstances, no suspicion of undue influence can arise out of the execution of the writing of October 6, 1885, or out of its not having been disclosed to the plaintiffs, which may well have been in order to prevent stirring up anew a family quarrel. In this respect, as in most others, the case wholly differs from that of Taylor v. Taylor, 'error.

Statement by Mr. Justice Brown:

This was an action of ejectment brought by Aquila H. Pickering against John A. Lomax and William Kolze to recover possession of two parcels of land in Cook county, Illinois, which had originally been granted by the United States to certain Indians under the treaty of Prairie du Chien, of July 29,



This case was before this court upon a former hearing (Pickering v. Lomax, 145 U. S. 310 [36: 716]), the report of which contains a full statement of the facts, which need not be here repeated. Upon that hearing the judgment of the supreme court of Illinois was reversed, and the case remanded for a new trial, which resulted in a judgment for Pickering, the plaintiff, and in an affirmance of that judgment by the supreme court of Illinois. Lomax v. Pickering, 165 Ill. 431. To review this judgment a second writ of error was sued out from this court.

Messrs. John M. H. Burgett, James Maher, and A. W. Browne for plaintiff in error.

Mr. John P. Ahrens for defendant in

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