These views render an examination of the numerous questions discussed by counsel for the Union National Bank and the heirs of Coolbaugh, upon the pleadings and rutings in admitting and excluding evidence unnecessary. Under no state of pleading would it have been admissible for the Union National Bank and the beirs of Coolbaugh, as second mortgagees, to have introduced evidence proving usury in the mortgage securing the notes held by the International Bank, Lowenthal, Austrian, and others. [Omitting a minor point.]

TELEGRAPH - NEGLIGENCE — DAMAGESSPECULATIVE PROFITS.

UNITED STATES SUPREME COURT, JAN. 30, 1888.

WESTERN UNION TELEGRAPH COMPANY V. HALL. In an action brought against a telegraph company by the the sender of an unrepeated message to recover damages for negligence in the transmission and delivery of a telegram directing the purchase of petroleum, where the evidence fails to disclose any actual damage beyond the amount paid for transmitting the message, plaintiff is limited in his recovery to that amount.

As there was no order to sell, or evidence that the plaintiff would have sold next day, he is entitled to recover only nominal damages.

ERR

RROR to the Circuit Court of the United States for the Southern District of Iowa.

This was an action at law brought in the Circuit Court of Polk county, Iowa, by George F. Hall against the Western Union Telegraph Company, and by the defendant removed, on the ground of citizenship, to the Circuit Court of the United States for the Southern District of Iowa. The action was for the recovery of damages for alleged negligence on the part of the defendant in delaying the delivery of a telegraphic message received by it from the plaintiff at Des Moines, in the State of Iowa, to be delivered to the party to whom it was addressed at Oil City, in the State of Pennsylvania. The cause was submitted to the court, a jury having been waived in writing. A judgment was rendered in favor of the plaintiff for $1,800. The cause is brought here by a writ of error upon a certificate of a division of opinion between the judges upon certain questions which arose during the course of the trial, which questions, together with the facts necessary to their determination, are certified to us as follows:

"The court finds the following as the material facts in the case:

"The plaintiff, at 8 o'clock A. M., November 9, 1882, furnished to the defendant, a telegraph company engaged in the business of receiving and sending telegraph dispatches at its office in Des Moines, Iowa, a message in the following form, and plainly written on One of the usual blauk forms furnished by the company:

"Form No. 2-The Western Union Telegraph Com

pany.

All messages taken by this company are subject to the following terms: To guard against mistakes or delays the sender of a message should order it repeated; that is, telegraphed back to the originating office for comparison. For this one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this company that said company shall not be liable for mistakes or delaysin the transmission or delivery or non-delivery of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount

received for sending the same; nor for mistakes or delays in the transmission or delivery, or for non-delivery of any repeated message beyond fifty times the sum received for sending the same, unless specially insured; nor in any case for delays arising from unavoidable interruption in the working of its lines, or for errors in cipher or obscure messages. And this company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other company when necessary to reach its destination. Correctness in the transmission of message to any point on the lines of this company can be insured by contract in writing stating agreed amount of risk and payment of premium thereon, at following rates, in addition to the usual charge for repeated messages, viz.: one per cent for any distance not exceeding 1,000 miles, and two per cent for any greater distance. No employee of the company is authorized to vary the foregoing. No responsibility regarding messages attaches to this company until the same are presented and accepted at one of its transmitting offices, and if a message is sent to such office by one of the company's messengers he acts for that purpose as the agent of the sender. Messages will be delivered free within the established free-delivery limits of the terminal office; for delivery at a greater distance a special charge will be made to cover the cost of such delivery. The company will not be liable for damages in any case where the claim is not presented in writing in sixty days after sending the message. "NORVIN GREEN,

"To Charles T. Hall, Exchange, Oil City, Penn.: "Buy ten thousand if you think it safe. Wire me. "GEORGE F. HALL.'

"Read the notice and agreement at the top.' "The same being furnished and received by the defendant for immediate transmissal to Charles T. Hall, at Oil City, Penn., the usual and ordinary charge therefor being paid by plaintiff. Through the negligence and want of ordinary care on the part of defendant's employee at Des Moines, the message so received was forwarded to Oil City, Penn., in an imperfect condition, in this, that the name of the party to whom it was addressed was wholly omitted. The message was received at Oil City, Penn., at 11 o'clock A. M., November 9

"The operator of defendant at Oil City sent the message to the building known as the Exchange, which was used by a board of trade engaged in the business of buying and selling petroleum, the hours of business extending from 10 A. M. until 4 P. M. The officers of the exchange or board of trade refused to receive the dispatch in question, and thereupon the operator at Oil City telegraphed to Des Moines for the purpose of ascertaining to whom the dispatch should be delivered, and thus ascertaining for whom it was intended, delivered it to Charles T. Hall at 6 o'clock P. M., Nov. 9, 1882. Had it not been for the error in sending the dispatch without including the name of Charles T. Hall it would have been delivered to him at Oil City at 11.30 A. M., November 9, 1882. The meaning of the dispatch was to direct Charles T. Hall to buy 10.000 barrels of petroleum if in his judgment it was best to do so. Had the dispatch upon its first receipt at Oil City, Penn., been promptly delivered to Charles T. Hall, he would by 12 M. of November 9 have purchased 10,000 barrels of petroleum at the then mar

ket price of $1.17 per barrel for the plaintiff. When the dispatch was delivered to Charles T. Hall the exchange had been closed for that day, so that said Hall could not then purchase the petroleum ordered by plaintiff. At the opening of the board the next day the price had advanced to $1.35 per barrel, at which rate said Charles T. Hall did not deem it advisable to make the purchase, and hence did not do so.

"It is not disclosed in the evidence whether the price of petroleum has advanced or receded since that date, November 10, 1882. The operators acting for the defendant had no other knowledge of the meaning or purpose of the dispatch than is to be gathered from the message itself.

"The plaintiff brought this action to recover damages for the failure to properly and promptly transmit the dispatch in question in the Circuit Court of Polk county, Iowa, the original notice being served upon the defendant on the 22d day of December, 1882. Under the statutes of Iowa actions in the courts of that State are commenced by serving upon the defendant an original notice, which is signed by the plaintiff or his attorney, and is addressed to the defendant. No summons or writ ander the seal of the court is issued. The notice in this case was addressed to the defendant, and after entitling the cause, proceeded as follows: You are hereby notified that on or before the 22d of December, 1882, the petition of plaintiff in the above-entitled cause will be filed in the office of the clerk of the Circuit Court of the State of Iowa, in and for Polk county, Iowa, claiming of you the sum of fifteen hundred dollars, as money justly due from you as a loss and damage suffered by the plaintiff by reason of your negligent failure to send and deliver a telegram, as set forth in said petition, on November 9, 1882, from plaintiff to Charles T. Hall, at Oil City, Penn., and that unless you appear thereto and defend before noon of the second day of the January Term, A. D. 1883, of the said court, which will commence on the second day of January, A. D. 1883, default will be entered against you and judgment rendered thereon. Crom. Bowen and Whiting S. Clark, attorneys for plaintiff.'

"No other presentation of the claim was made by plaintiff. Upon the foregoing facts it is the opinion of the presiding judge that the law is with the plaintiff, and that he is entitled to judgment in the sum of eighteen hundred dollars, and it is so ordered as the judgment of the court.

"The judges holding said Circuit Court, and before whom said cause was tried, hereby certify that on said trial of said cause they were divided in opinion, and were unable to agree upon the following questions of law arising on said trial, and necessary to be determined in order to finally determine said cause, to- wit: "First. Can the defendant, having in the usual line of business accepted said message from plaintiff for transmissal to the party named therein, at Oil City, Penn., and having received its usual charge for such service, be heard to say that it was not bound to exercise ordinary care in transmitting the same, and that it is only liable to the plaintiff in damages in case of gross negligence on its part?

"Second. Under the contract legally existing between the plaintiff and defendant, whereby the latter assumed the duty of forwarding said message, the same being an unrepeated message, was the defendant bound only to the exercise of slight care or to the exercise of ordinary care?

"Third. Under the contract legally existing between plaintiff and defendant, whereby the defendant assumed the duty of forwarding said message, the same being an unrepeated message, can the defendant, in any event, be held to respond in damages be

yond the amount paid to the company for forwarding the said dispatch?

"Fourth. Admitting the liability of defendant to respond in damages beyond the sum paid for forwarding the message, what rule is to govern in ascertaining the same? Are the damages merely nominal, or is plaintiff entitled to the difference in value of the oil at the time it would have been purchased for plaintiff had the message been properly forwarded and the value at the time it could have been purchased after the actual delivery of the message to Charles T. Hall, at Oil City, Penn., it being admitted that he did not make the purchase for the reason, that in his judg ment, the price on the morning of November 10, 1882, was too high to justify purchasing?

"Fifth. Was the message so obscure and uncertain on its face that the defendant should not be held to know that it pertained to a transaction involving loss and damage if the message was not properly and promptly forwarded?

"Sixth. Was the service of the original notice in this cause a sufficient compliance with the clause in the contract providing that the company will not be liable for damages in any case where the claim is not presented in writing within sixty days after sending the message?' If not, is the right of recovery barred by the failure to present the claim in writing?" Wager Swayne and Rush Taggart, for plaintiff in er

ror.

Crom. Bowen, Whiting S. Clark and Chas. A. Clark, for defendant in error.

MATTHEWS, J. The view we take of this case requires us, in answer to the fourth question certified, to say that in the circumstances disclosed by the record, the plaintiff was entitled only to recover nominal damages, and not the difference in value of the oil if it had been purchased on the day when the message ought to have been delivered and the market price to which it had risen on the next day. As the judgment was rendered in his favor for the latter sum, it must be reversed on that account, and upon the facts found by the court, judgment rendered for nominal damages only, which finally disposes of the litigation. It therefore becomes unnecessary to consider or decide any of the other questions certified to us.

It is found as a fact that if the dispatch upon its first receipt at Oil City had been promptly delivered to Charles T. Hall, to whom it was addressed, he would, by 12 o'clock on that day, have purchased 10,000 barrels of oil at the market price of $1.17 per barrel, on the plaintiff's account. He was unable to do so in consequence of the delay in the delivery of the message. On the next day the price had advanced to $1.35 per barrel, and no purchase was made because Charles T. Hall, to whom the message was addressed, did not deem it advisable to do so, the order being conditional on his opinion as to the expediency of executing it. If the order had been executed on the day when the message should have been delivered there is nothing in the record to show whether the oil purchased would have been sold on the plaintiff's account on the next day or not, or that it was to be bought for resale. There was no order to sell it, and whether or not the plaintiff would or would not have sold it is altogether uncertain. If he had not done so, but had continued to hold the oil bought, there is also nothing in the record to show, whether up to the time of the bringing of this action, he would or would not have made a profit or suffered a loss, for it is not disclosed in the record whether during that period the price of oil advanced or receded from the price at the date of the intended purchase. The only theory then on which the plaintiff could show actual damage or loss is on the supposition that if he had bought on

the 9th of November he might and would have sold on the 10th. It is the difference between the prices on those two days which was in fact allowed as the measure of his loss.

It is clear that in point of fact the plaintiff has not suffered any actual loss. No transaction was in fact made, and there being neither a purchase or a sale, there was no actual difference between the sums paid and the sums received in consequence of it which could be set down in a profit and loss account. All that can be said to have been lost was thejopportunity of buying on November 9, and of making a profit by selling on the 10th, the sale on that day being purely contingent, without any thing in the case to show that it was even probable or intended, much less that it would certainly have taken place.

It has been well settled since the decision in Musterton v. Mayor of Brooklyn, 7 Hill, 61, that a plaintiff may rightfully recover a loss of profits as a part of the damages for breach of a special contract, but in such a case the profits to be recovered must be such as would have accrued and grown out of the contract itself as the direct and immediate result of its fulfillment.

In the language of the Supreme Judicial Court of Massachusetts, in Fox v. Harding, 7 Cush. 516: "These are part and parcel of the contract itself, and must have been in the coutemplation of the parties when the agreement was entered into. But if they are such as would have been realized by the party from other independent and collateral undertakings, although entered into in consequence and on the faith of the principal contract, then they are too uncertain and remote to be taken into consideration as a part of the damages occasioned by the breach of the contract in suit."

This rule was applied by this court in the case of Philadelphia, Wilmington & Baltimore R. Co. v. Howard, 22 How. 307. In Griffin v. Colver, 16 N. Y. 489, the rule was stated to be that "the damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract; that is, they must be such as might naturally be expected to follow its violation; and they must be certain both in their nature and in respect to the cause from which they proceed. The familiar rules on this subject are all subordinate to these. For instance, that the damages must flow directly and naturally from the breach of the contract, is a mere mode of expressing the first; and that they must not be the remote, but proximate, consequence of such breach, and must not be speculative or contingent, are different modifications of the last."

In Booth v. Spuyten Duyvil Rolling Mills Co., 60 N. Y. 487, the rule was stated to be that "the damages for which a party may recover for a breach of a contract are such as naturally and ordinarily flow from the non-performance; they must be proximate and certain, or capable of certain ascertainment, and not remote, speculative or contingent."

In White v. Miller, 71 N. Y. 133; S. C., 27 Am. Rep. 13, it was said: "Gains prevented, as well as losses sustained, may be recovered as profits, when they can be rendered reasonably.certain by evidence, and have naturally resulted from the breach."

In cases of executory contracts for the purchase and sale of personal property ordinarily, the proper measure of damages is the difference between the contract price and the market price of the goods at the time when the contract is broken. This rule may be varied according to the principles established in Hadley v. Baxendale, 9 Exch. 341; 23 L. J. Exch. 179, where the contract is made in view of special circumstances in contemplation of both parties. That well known case, it will be remembered, was an action against a carrier to recover damages occasioned by delay in the

delivery of an article, by reason of which special injury was alleged. In the application of the rule to similar cases, where there has been delay in delivering by a carrier which amounts to a breach of contract, the plaintiff is not always entitled to recover the full amount of the damage actually sustained; prima facie the damages which he is entitled to recover would be the difference in the value of the goods at the place of destination at the time they ought to have been delivered and their value at the time when they are in fact delivered. Horn v. Midland Ry. Co., L. R., 8 C. P. 131; Cutting v. Grand Trunk Ry. Co., 13 Allen, 381. Any loss above this difference sustained by the plaintiff, not arising directly from the delay, but collaterally by reason of special circumstances, can be recovered only on the ground that these special circumstances, being in view of both parties to the contract, constituted its basis. Simpson v. London, etc., Ry. Co., 1 Q. B. D. 274. So the loss of a market may be made an element of damages against a carrier for delay in delivery, where it was understood, either expressly or from the circumstances of the case, that the object of delivery was to get the benefit of the market. Pickford v. Grand Junction Ry. Co., 12 M. & W. 766. In Wilson v. Lancashire, etc., Ry. Co., 9 C. B. (N. S.) 632, the plaintiff was held entitled to recover for the deterioration in the marketable value of the cloth by reason of delay in the delivery, whereby the season for manufacturing it into caps, for which it was intended, was lost.

The same rule, by analogy, has been applied in actions against telegraph companies for delay in the delivery of messages, whereby there has been a loss of a bargain or a market. Such was the case of United States Telegraph Co. v. Wenger, 55 Penn. St. 262. There the message ordered a purchase of stock, which advanced in price between the time the message should have arrived and the time when it was purchased under another order, and the advance was held to be the measure of damages. There was an actual loss, because there was an actual purchase at a higher price than the party would have been compelled to pay if the message had been properly delivered, and the circumstances were such as to constitute notice to the company of the necessity for prompt delivery. The rule was similarly applied in Squire v. Western Union Telegraph Co., 98 Mass. 232. There the defendant negligently delayed the delivery of a message accepting an offer to sell certain goods at a certain place for a certain price, whereby the plaintiff lost the bargain which would have been closed by a prompt delivery of the message. It was held that the plaintiff was entitled to recover as compensation for his loss the amount of the difference between the price which he agreed to pay for the merchandise by the message, which if it had been duly delivered would have closed the contract, and the sum which he would have been compelled to pay at the same place in order, by the use of due diligence, to have purchased a like quality and quantity of the same species of merchandise. There the direct consequence and result of the delay in the transmission of the message was the loss of a contract, which if the message had been duly delivered, would by that act have been completed. The loss of the contract was therefore the direct result of the defendant's negligence, and the value of that contract consisted in the difference between the contract price and the market price of its subject-matter at the time and place when and where it would have been made. The case of True v. International Telegraph Co., 60 Me. 1; S. C., 11 Am. Rep. 156, cannot be distinguished in its circumstances from the case in 98 Mass. 232, and was governed in its decision by the same rule. The cases of Manville v. Telegraph Co., 37 Iowa, 220; S. C., 17 Am. Rep. 8, and of Thompson v.

Telegraph Co., 64 Wis. 531; S. C., 54 Am. Rep. 644, were instances of the application of the same rule to similar circumstances, the difference being merely that in these the damage consisted in the loss of a sale instead of a purchase of property, which was prevented by the negligence of the defendant in the delivery of the messages. In these cases the plaintiffs were held to be entitled to recover the losses in the market value of the property occasioned which occurred during the delay.

Of course, where the negligence of the telegraph company consists, not in delaying the transmission of the message, but in transmitting a message erroneously, so as to mislead the party to whom it is addressed, and on the faith of which he acts in the purchase or sale of property, the actual loss based upon changes in market value are clearly within the rule for estimating damages. Of this class examples are to be found in the cases of Turner v. Hawkeye Telegraph Co., 41 Iowa, 458; S. C., 20 Am. Rep. 605, and Rittenhouse v. Independent Line of Telegraph, 44 N.Y. 263; 8. C., 4 Am. Rep. 673; but these have no application to the circumstances of the present case. Here the plaintiff did not purchase the oil ordered after the date when the message should have been delivered, and therefore was not required to pay, and did not pay, any advance upon the market price prevailing at the date of the order; neither does it appear that it was the purpose or intention of the sender of the message to purchase the oil in the expectation of profits to be derived from an immediate resale. If the order had been promptly delivered on the day it was sent, and had been executed on that day, it is not found that he would have resold the next day at the advance, nor that he could have resold at a profit at any subsequent day. The only damage therefore for which he is entitled to recover is the cost of transmitting the delayed message.

The judgment is accordingly reversed, and the cause remanded, with directions to enter a judgment for the plaintiff for that sum merely.

[See Pennington v. Western Union Telegraph Co., 67 Iowa, 631; S. C., 56 Am. Rep. 367; also note, 60 Am. Rep. 488.-ED.]

ABSTRACTS OF VARIOUS RECENT DECISIONS.

MARRIAGE-PARTNERSHIP OF HUSBAND AND WIFE. -A statute which provides that "a married woman shall have the right * * * to contract and be contracted with, as to her separate property, in the same manner as if she were unmarried," confers no power to make a contract of partnership. The Legislature finding that the Constitution did not in express terms confer upon a married woman the power to contract and be contracted with, though such a power might be necessarily implied in the power to acquire and dispose of her property, and fearing that it might be doubtful whether the further power to make such contracts as would be necessary or desirable for the proper use, custody, preservation, and enjoyment of the wife's property, could also be implied from the general terms used in the Constitution, made this enactment for the purpose of removing such doubt, by declaring in express terms that a married woman might contract and be contracted with as to her separate property in the same manner as if she were unmarried." This being the nature of the limited power of a married woman to make contracts, and the purpose of the limitation being to protect her, not only from the importunities of her husband, but also from her own improvidence and weakness in yielding

44

to her own generous and self-sacrificing impulses, we are now prepared to consider the first question presented in this particular case-whether the plaintiff had the power to make the contract of partnership set up in this case. It will be observed that the alleged contract is expressed in the most general terms. It contains no provision that either of the proposed parties shall put in as capital any specified amount of money, or any particular property. It is simply a bald agreement between husband and wife for the formation of a general partnership, in which no particular terms are specified, and no provision that either or both of the proposed partners are to furnish the whole or any part of the capital. Now we are told by Chancellor Kent (3 Com. 2), that a partnership is a contract of two or more persons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, and to divide the profit, and bear the loss, in certain proportions." And in 1 Pars. Cont. 147, it is said: "A partnership exists when two or more persons combine their property, labor and skill, or one or more of them, in the transaction of business for their common profit." Now inasmuch as there is no mention made of any money, effects, or property in this agreement, if we should regard this as an agreement that each of the parties named should combine their labor and skill in the proposed enterprise, it is quite certain that no such partnership could be formed between husband and wife, for the simple reason that her labor and skill already belonged to her husband. As we have determined in the recent case of Bridgers v. Howell, 3 S. E. Rep. 790, neither the Constitution nor the statutes have made any change in the doctrine of the common law that the husband is entitled to the personal earnings of the wife, because her services belong to him, and not to her. But if on the other hand, the alleged contract of partnership could be regarded as an agreement on the part of the wife to put her separate property into the partnership as a part of its capital, the very moment it was so put in it would at once cease to be her separate property, and would become the property of the partnership; and hence any contract subsequently made by the alleged partnership could not be regarded as a contract made by the wife "as to her separate property "-the only kind of contract which she has the capacity to make-and she could not therefore be bound thereby. A married woman being thus denied the capacity to assume one of the liabilities necessarily incident to the partnership relation, it would seem to follow necessarily that she has no power to form such a relation. But even if it should be assumed that an agreement by a married woman to put her separate property into a partnership as a part of its capital, was a contract as to her separate property, it would be quite sufficient for the decision of this particular case to say that the contract here set up contains no such stipulation or provision. We are not however disposed to rest our decision upon that narrow ground. Even conceding that an agreement by a married woman, to contribute her separate property to the capital of a partnership, if that was all of the agreement, would be such a contract as she was competent to make, it would not conclude the inquiry, for that is not all that is involved in the contract of partnership. It most usually involves an obligation to contribute one's time and services, which a married woman has no right to control, and what is much more important, it involves a personal liability for the debts of the partnership, which a married woman has no power to incur, as such debts arise from contracts which can in no sense be regarded as contracts as to her separate property. It seems to us clear therefore that even looking to the property relations between husband and wife, a con

tract of partnership is not such a contract as a married woman has been invested with the power to make; but when we look to the more important and sacred relations between man and wife, which lie at the very foundations of civilized society, which are liable to be at least disturbed, if not absolutely destroyed, by allowing the wife to enter into partnership with any one with whom she may see fit to form such a relation, we cannot suppose that the Legislature ever intended to invest her with such a power. They certainly have not said so in express terms, and we do not think that such a power can be implied from what they have said. S. C. Sup. Ct., Nov. 29, 1887. Gwynn v. Gwynn. Opinion by McIver, J.; McGowan, J., dissenting.

MASTER AND SERVANT LIABILITY OF LIVERY KEEPER FOR NEGLIGENCE OF DRIVER.-In an action for damages for injuries resulting in the collision of a wagon driven by plaintiff and a carriage belonging to defendant, and driven by a servant in defendant's employ, the defendant asked the court to charge the jury to the effect that if the driver was at the time of the accident in the employ of the person to whom the carriage was hired, the defendant is not liable; and also that if the carriage and driver were at the time of the accident temporarily engaged in the service of the person hiring the same, and under his direction and control, the defendant is not liable for the negligence of the driver. Held, that the instructions were properly refused. Penn. Sup. Ct., Nov. 11, 1887. Hershberger v. Lynch. Opinion per Curiam.

MUNICIPAL CORPORATIONS-LIABILITY FOR DEFECTIVE SEWER-NEGLIGENCE IN DEVISING PLAN-ERROR OF JUDGMENT.-Where a sewer is of such a character as to require the preparation of a plan by a skilled person, it is negligence for councilmen to act on their own judgment, no matter how much they deliberate; but if the municipal officers exercise reasonable care in securing the preparation of plans by a skilled person, and use ordinary care in seeing to it that such person uses his skill, then in case the sewer proves insufficient, because of a defect in the plan, there is no negligence, although there may be an error of judgment, and the corporation is not liable. It has long. been the law in this State that a municipal corporation is liable for negligence in devising the plan of a sewer constructed by it, as well as for negligence in the manner of doing the work. Of course as long as no work is done under the plan, no liability can arise, nor can a liability exist where there is nothing more than a failure to adopt a plan. But where a plan is adopted and carried into execution, then there is a liability if there was negligence in devising the plan. It is the duty of the municipal corporation to exercise reasonable care in providing a plan as well as in doing the work under it. In the case of City of North Vernon v. Voegler, 103 Ind. 314, the cases were collected; and it was said among other things, that "the doctrine is not only sustained by authority, but is sound in principle. Suppose that the common council of a city determine to build a sewer; and cover it with reeds, can it be possible that the corporation can escape liability on the ground that the common council errer in devising a plan? Or to take such a case as City of Indianapolis v. Huffer, 30 Ind. 235, suppose the common council undertake to conduct a large volunie of water through a culvert capable of carrying less than one-tenth of the water conducted to it by the drains constructed by the city, can responsibility be evaded on the ground of an error of judgment? Again, to take an illustration from a somewhat different class of cases, suppose the common council devise a plan for a bridge that will require timbers so slight as to give way beneath the tread of a child." From

the rule expressed in so many of our cases we cannot depart for it is not only well sustained by authority but is right in principle." Morrill Neg. 86. While our cases have always held that municipal corporations are liable for negligence in devising a plan, they have from first to last declared that there is no liability unless there is negligence. Rice v. City, 108 Ind. 7; S. C., 58 Am. Rep. 22; City of North Vernon v. Voegler, 103 Ind. 314; City of Crawfordsville v. Bond, 96 id. 236; City v. Decker, 84 id. 325; S. C., 43 Am. Rep. 86; Cummins v. City, 79 Ind. 491; 8. C., 41 Am. Rep. 618; Weis v. City, 75 Ind. 241; S. C., 39 Am. Rep. 135; City v. Huffer, 30 Ind. 235; Stackhouse v. City, 26 id. 17; City v. Wright, 25 id. 512. It is therefore a question of paramount importance whether the municipal authorities exercised due care in securing a plan, for if they did not exercise such care then their error is one of judgment, which cannot create a liability. It is however negligence for men unskilled in the business of preparing plans for sewers to act upon their own judgment in cases where skill is required. Bradbury v. Goodwin, 108 Ind. 286. It is their duty to use reasonable care to procure the services of men skilled in such affairs, and if they fail to exercise this care they are guilty of negligence for which the corporation must answer. Undertaking to exercise judgment without skill in a matter which requires skill is not a mere error of judgment, but it is negligence. This is a familiar principle pervading all branches of jurisprudence. A man who undertakes as a lawyer to conduct an action at law, without possessing skill, is negligent. So too one who undertakes to treat a sick or wounded man as a physician or surgeon without possessing a fair degree of personal knowledge is guilty of a breach of duty. A mechanic who undertakes to build a house is liable in damages if through ignorance he does his work unskilfully. Negligence, according to Judge Cooley's definition, is "the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand. Cooley Torts, 560; Brown v. Railway Co., 49 Mich. 153. If a municipal corporation undertakes the work of constructing a system of sewers in a case where the assistance of men skilled in such matters is essential to secure sewers that shall carry off the water conducted into them, without using reasonable care to procure such assistance, there is an absence of the vigilance and precaution which the circumstances justly demand." If however the municipal authorities do exercise reasonable care in securing such assistance, and do exercise reasonable care in securing the employment of fair care and skill, they are not guilty of negligence. If after bringing into exercise reasonable care to select skilled persons, and in securing the exercise of their skill, there is still a defect in the system, it must be attributed, not to negligence, but to an error of judgment. The case is strictly analogous to that of a railroad company sought to be held liable by one of its employees. In such cases it is uniformly held that if ordinary care is used in the selection of the co-servants, the company is not liable, although it may turn out that the co-servant was not capable of performing the duties intrusted to him. So here if the municipal corporation uses reasonable case to secure and put into exercise the services of competent engineers, it ought not to be held liable, although it does turn out that a mistake was made. It would impose a burden upon municipal corporations that no principle of right or justice warrants, to hold them accountable where they have exercised reasonable care to secure a perfect and an adequate system of sewerage. The principle which we are endeavoring to bring out is thus declared in Johnston v. District of Columbia, 1 Lack. 327: "In the next place, a mere error of judg