Defendants claimed on the trial that the exclusive right to use the invention, the contract not being in writing, or to made the agreement with plaintiff, who be performed within a year, was void gave up to them all rights under the under the statute of frauds. patent, and there being no fraud, and James Lansing, for applt, defendants during the time mentioned Esek Cowen, for respts. in the complaint having enjoyed all Held, That it was not necessary for they could have had if the patent had the complaint to allege that the conbeen valid; that there was abundant consideration to uphold the agreement, tract was in writing; it will be presumed for the purposes of the complaint. whether the patent was valid or invalid. That the averment of the answer that 1 Cai., 45; 7 Barb., 590; 43 N. Y., 34; an independent instrument was to be 1 N. R., 260; 88 E. C. L. R., 929; 7 executed was not inconsistent with the H. & N., 499; 8 Cl. & F., 726; 10 H. existence of a contract in writing, of L. Cas., 293; 12 M. & W, 823; 38 embracing all the terms of the con- E. L. & Eq., 48; Hindmarch on Patents, tract, and if merely inconsistent, the 245; 1 Gray, 114; 4 Hun, 279. contract alleged in the complaint not having been denied, the averment did not put in issue the making of a valid contract. Code, 149, 168; 21 Barb., 190; 44 Id., 175. As to whether the statute of frands or the act of Congress requires such a contract to be in writing, quære. The invalidity of a patent is a defence to an action for the purchase price of the same, on the ground of a failure of the consideration. 13 Wend., 385; 19 Id., 411; 2 Bosw., 387; 13 N. H., 317; 2 W & S., 270; 11 Ohio, 471; 8 Ind., 82; 7 Blackf., 138; but where one having a void patent which The defendants also claimed that the he can use and give others a right to contract was void for want of consider- use, surrenders this advantage to anation, in that the patent was invalid. other, the latter, during the time he is It had been established in an action in permitted to use the patent unmolested, the U. S. Circuit Court, in which these gets what he contracted for, and is defendants were plaintiffs, and plaintiff bound to pay the agreed compensation. defendant, that the patent was void, N. R., 260; 88 Eng. C. L. R., 929; because the patentee was not the first 7 H. & N., 499; 8 Cl. & F., 26; 10 H. inventor of the improvement patented. of L. Cas., 293; 12 M. & W., 823: 35 That judgment was not set up in the E. L. & Eq., 48; 1 Gray, 114; 4 Hun., answer, but the invalidity of the patent was alleged. The judgment was offered in evidence to prove the allegation, by defendants, and received. Held, That assuming that the allegation was material, the evidence was properly received. 3 Den., 238; 14 N. Y., 329; 28 Id., 45. But that as plaintiff and defendants were tenants in common of the patent, all believing it to be valid, and as defendants desired 1 279. As to where one has sold in good faith a void patent, and the assignee has enjoyed the monopoly for the whole term without molestation or liability to account to any one, there is a failure of consideration which will defeat an action for the purchase pr ce, quære. Judgment of General Term, affirming judgment for defendant, reversed, and new trial granted. Opinion by Earl, J. DAMAGES. CORPORATIONS. SUPREME COURT OF IOWA. McKinley, respt. v. Chicago and Northwestern Railway Company, applt. Decided December, 1875. it after it was done, this is not a case where exemplary or punitive damages can be allowed. The principal cannot damages against him for the willful, be punished by awarding exemplary wrongful or malicious act of his agent or servant, unless the wrongful act was done by the direction of the principal A corporation is liable only for the actual damages caused by the wilful acts of its agent, done in the course of his employment, unless it shall or was afterwards ratified by him. have authorized such acts or ratify The extent of the damages in such them after they are done. The agent cases is what the law calls compensatory. alone is liable for all exemplary Compensatory damages embrace the damages arising out of such act. What are exemplary damages. reasonable expenses incurred by plaintiff, if any, in curing or endeavoring This action was brought to recover to cure the injuries he received; also damages for injury alleged to have been the damages suffered, if any, from the caused by beating and forcible resistance loss of time and inability to attend to of plaintiff by a brakeman of defendbusiness. resulting from the injuries reant, when plaintiff was about to enter ceived, also the bodily pain and suffera passenger car of defendant's at low-ing, if any, resulting from the injuries ard Junction, Wisconsin, on March 22, received; and for the outrage and infrom the evidence that the plaintiff has dignity put upon him; and if you find not yet recovered from the injuries received, or if you find that the injuries are permanent, you should award such damages as you belie e, from the testitimony, it is fair to infer the plaintiff 1872. The plaintiff, a citizen of Iowa, in March, 1872, purchased of defendant in Chicago a ticket from there to Beloit. A change of cars became necessary at Howard Junction. The plaintiff endeavored to enter the rear car of defendant's train upon which he was to continue his journey, and was refused permission by a brakeman of defend will suffer in the future. "Taking all these elements into con sideration, you will ascertain the amount ant, who was charged with that duty, on the ground that it was a car set apart for ladies and gentlemen accompanying them. The plaintiff insisted upon enThe jury returned a verdict for plaintering the car, and a struggle there upon tiff in the sum of twelve thousand doloccurred between the brakeman and lars. A judgment was rendered thereplaintiff, in the course of which the in-on, from which defendant appealed. juries complained of are alleged to have been received. Defense, general issue. The court, upon the trial, charged the jury as follows: "There being no evidence in the case that the general officers of the defendant advised the wrongful act, or ratified Held, That in an action against a corporation for the willful acts of its servant done in the course of his em ployment and in the discharge of his duty, the corporation is liable for only the actual damages to the injured party; that for all exemplary damages growin out of such willful assault, the servant alone is liaable; that if the corporation one arise ne for which the servant alone is liable. party to construct a tunnel sewer instead of an open one without readvertising for bids. The Commissioners are not liable to parties who have paid the assessment for any surplus that may remain after the work is paid for; but the parties must look to the Common Council. This action was brought to have certain proceedings of the Commissioners of Public Works of the City of Roch ester, in relation to the construction of a sewer declared void, and to restrain the collection of an assessment therefor and the payment of moneys already collected. Plaintiff's are some of the owners of the real estate assessed, an i brought this action in behalf of themselves and others similarly inter ested. In January, 1874, a petition was filed with the Commissioners of Public Works asking for an out let sewer in Platt and other streets. The sewer was defined, except it was to be 25 feet deep. After hearing the parties an ordin ance was passed which provided for "the deepening and enlarging of Platt The judgment must be reversed for this error in the charge respecting the measure of damages. Opinion by Cole, J.; Beck, J., dis-street outlet sewer, from the east high senting. CONTRACTS. ASSESSMENTS. N. Y. COURT OF APPEALS. bank in the rear of Jefferson Mills, leading to the west line of State street, by enlarging that portion under said mill, constructing a tunnel under the race, and deepening that portion of the sewer in Mill street and Platt street to Lutes et. al., respts. v. Briggs et al., the west line of State street.” applts. An assessment was ordered for the estimated expense and was afterwards made and confirmed. Decided March 21, 1876. Where the Commissioners of Public Works are authorized to contract for Proposals for the construction of the deepening a sewer, and after entering work were duly .dvertised for. One into a contract pursuant to such au- S. made a proposal in an alternate form, thority, for an open sewer, Held, that the Commissioners did not exceed being "for sewer through Mill and their authority by entering into a Platt streets, per lineal foot $20, or for subsequent contract with the same tunnel under Mill and Pratt streets, per lineal foot, $25," and the contract was seriously affect an important business awarded to him "for $18,680 for an street, and the objections to such change open cut and tunnel sewer." and the increase of expense were questions for the consideration of the Commissioners. On April 24, 1874, some of the parties interested petitioned the Commissioners "to contract for a tunnel and The Commissioners did not exceed not for an open cut," and on that day their authority in making the final conthey passed a resolution that the vote tract, and having already advertised, awarding the contract for building an were not required to do so again; the open sewer be reconsidered, and post-power was not entirely exhausted by poned further action. the original award, and there was no le the bids. Also held, That as the charter, section 207, chap. 143, Laws of 1861 provides that if, upon the completion of an improvement, it appears that a great On May 1, 1874, the Commissioner, gal obstacle to their making an arrangewithout advertisiement or ordinance, ment contemplated by th proposal and awarded the contract to S. under the alternative in his proposal for a tunnel under Mill and Platt streets, and a formal contract was executed. It was conceded that the proceedings were valid up to the time of the award of er amount was assessed and collected the original contract. The referee found that the final letting was contrary to the ordinance, and illegal and void, and ordered judgment restraining the payment out of the funds raised by the assessment for work done under plete against the Common Council if tha portion of the contract which pre- any surplus remained, and was not vided for the construction of a tunnel against the Commissioners. under Mill and Platt streets. C. Cochrane, for respt. James Brick Perkins, for applt. Held, error; That the commissioners had ample authority under the ordinance to contract for the construction of the sewer, either by an open cut or by tunneling as might be deemed for the interest of the lot holders or the public; that the "deepening" of a sewer would of itself include any mode by which this could be accomplished; that the Commissioners were justified in chang than was required, such amount must be apportioned by the Common Council and paid to the owners of the property on demand. The remedy of plaintiffs was com That it is no answer to say that the and new trial granted. SUBROGATION. ing the contract from an open cut to a N. Y. SUPREME COURT. GENERAL TERM. tunnel within the strict meaning of the ordinance upon the petition of some of the parties interested, showing that a cutting down from the surface would SECOND DEPARTMENT. Albert Cole, respt. v. Robert Malcom, impleaded, applt. Decided February, 1876. no more; that the appellant made the payment voluntarily. One who holds under a grantee of a claims paid out of the property so confraudulent conveyance is not enti-veyed; that any one taking under her fled, on paying the amount of a must take the same rights she had, and judgment, to be subrogated to the rights of the judgment creditor who has had such conveyance set aside. One C., who was largely indebted at the time, made an assignment of certain lots of land owned by him to his wife without consideration, and for the purpose of defrauding his creditors. Ilis wife afterwards died, childless and intestate, and the property descended to the defendant and her other heirs. at law. Subsequently to this the plaintiff ob That appellant is entitled to redeem the property, but it cannot be tolerated that C. should make good the failure of the gift to his wife out of subsequently acquired property. Order affirmed, with costs. SUBROGATION. tained a judgment against said C., the N. Y. SUPREME COURT. GEN'L TERM execution upon which was returned unsatisfied. He thereupon brought this action against C. and the heirs at law of the wife to have the conveyance set aside as fraudulent and recovered judgment therein which was afterwards affirmed. The lots were advertised for sale, and the defendant thereupen tendered the amount of the judgment to the respondent or his assignee, and demanded an assignment of the decree in this case, and also of the judgment in the form er action. The assignee offered to assign the decree but not the judgment. Upon this state of facts defendant made a motion that the assignee be compelled to assign to him the decree and the judgment in the former case, and that he, said defendant, be subrogated to the rights of the plain ift. This motion was denied, and defend ant appealed from the order of denial. Hamilton Odell, for respt. John R. Pos Passos, for applt. Held, That the conveyance to the wife was fraudulent as against creditors, and that she took the title subject to the right of the creditors to have their THIRD DEPARTMENT. Bloomingdale v. Barnard. One who, after foreclosure, purchases of the mortgagor a term of years, and agrees to pay incumbrances thereon, so far as may be necessary to protect his title, does not stand in the position of a surety, and is not entitled to be subrogated. This action was brought to enforce an assignment of certain claims, notes, and judgments held by defendant upon payment to him of the amount due on certain judgments of foreclosure. This is an appeal from an order restraining a sale by defendant under two judgments in foreclosure, upon premises called No. 1 and No. 2 respectively, which had been assigned to him, and to both of which actions the plaintiff was a party. Subsequently to the giving of the above mortgages, the mortgagor, R., gave a mortgage to the defendant on parcel No. 1 and other property. The property is insufficient to pay this debt. The plaintiff is a party to a foreclosure now proceeding upon that mortgage. R. subsequently mortgaged Nos. 1 |