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difficult case can not be essentially different from professional employment in another case of equal difficulty. And its value being ascertained in one instance, its value in the other could be at least approximated. The very best means of adjusting this value are the opinions of those who, in earning and receiving compensation for them, have learned what legal services in their various grades are worth. And the fact that the proposition was to adjust the whole value by specific estimates in regard to the different items and details of the general claim, would make the adjustment more satisfactory than an estimate in gross would be. There can be no necessary connection between the trial of an indictment and proceedings to procure a convicted defendant's pardon. Accuracy in the production of results required that the value of the separate services should be separately estimated."

STATE INSOLVENT LAWS.

III.

LAWS IMPAIRING THE OBLIGATION, AND THOSE AFFECTING THE REMEDY OF CONTRACTS.

We have scen that, according to the settled construction of that clause of the tenth section of article I, of the Federal Constitution, prohibiting the enactment of laws by the states which impair the obligation of contracts, all those insolvent or bankrupt laws, which undertake to discharge debtors from liability, without the consent, express or implied, of their creditors, are included within the inhibition. It is fair to assume that the "obligation," which the framers of the constitution had in view, was a civil, as distinguished from a mere moral, obligation. Were this not the meaning intended, state insolvent laws could in no case be regarded as obnoxious to this objection. They do not purport to relieve the debtor from the moral duty to keep and perform all his promises, but simply undertake to discharge him from legal liability for his failure in this particular.

The meaning of the word "impair" does not seem to present a question of very difficult solution, nor does its difficulty appear to be greatly enhanced by the connection in which it is used. It can not be construed to mean that laws should not be passed destroying or abrogating the obligation of contracts.

To impair is not necessarily to destroy. The purport of this provision as interpreted according to the obvious and well accepted meaning of words, is that no state shall pass a law which shall have the effect to release any one from the performance of any previous engagement which he was legally bound to perform, or which shall render that legal duty less binding upon him. There can be no such thing as a legal duty, which is capable of adequate expression in the admonition-"You ought to do" thus and so. Legal obligations are expressed in a more imperative form, and are invariably attended with a means of enforcing the injunction-" You shall." So inseparable are the duties to perform and the means of enforcing the performance of that duty or, the remedy - that we shall find some of the authorities cited below holding that the latter enters into and forms a part of the former. Berley v. Rampacher, 5 Duer, 183; Coffman v. Bank of Kentucky, 40 Miss. 29; White v. Hart, 13 Wall. 646; Conant v. Shaick, 24 Barb. 87; Day v. Wood, Id. 99; Thorn v. San Francisco, 4 Cal. 127; Cargill v. Power, 1 Mich. 369. From these statements we might logically infer that there are constitutional objections to laws imparing the remedy of contracts, quite as strong as there are to those impairing the obligation. In this position, however, we should hardly be borne out by the language of the decisions by which the interpretation of this clause has been settled. But this conclusion would not be disturbed by those cases where it is merely decided that the constitution does not prohibit a change of remedy. Foster v. Gray, 22 Penn. St. 9; Conkey v. Hart, 14 N. Y. 22; Mech's & Farmers Bank Appeal, 31 Conn. 63; Lennon v. Mayor, &c., of New York, 55 N. Y. 361; State v. Bosworth, 13 Vt. 402; Hoa v. Lefranc, 18 La. Ann. 393; Balt. & Susq. R. R. Co. v. Hartford Bridge Co., 10 How. 511. Το change the remedy is not necessarily to impair it. The same is equally true of the obligation. If the obligation can be altered without imparing its strength, it may be done without contravening any provision of the constitution.

The mutuality of a contract renders it exceedingly difficult to conceive of laws affecting its obligation at all which do not impair it to the prejudice of one party or the other. The obligation and the right are correlative,

and as each of the parties thereto has rights, so each is under obligations to the other, which can neither be increased nor diminished by state laws without disregarding the provisions of the portion of the constitution under consideration. "To impair," says Chief Justice McGirk, "in the sense in which it is used in both constitutions, means to alter so as to make the contract more beneficial to one party, and less so to the other, than by its terms it purported to be." Bailey v. Gentry, 1 Mo. 164. See also Brown v. Ward, 1 Mo. 148. So in Robinson v. Magee, 9 Cal. 81, it was decided that whatever provision of a statute substantially defeats the end contemplated by the party, substantially impairs its obligation. And in Walker v. Whitehead, 16 Wall. 314, still stronger language is used by the Supreme Court of the United States. There it is laid down that the laws in existence at the time the contract is entered into, form a part of the contract, whether such laws affect its validity, construction or means of enforcement. The remedy is held to be a part of that obligation, which the constitution protects against impairment by state laws. See also Olcott v. Supervisors, 16 Wall. 314.

For the reason that the remedy may be more variously altered and affected by legislation than the obligation, without impairing it, it may be stated, not only upon authority but sound reason, that laws affecting the remedy are not generally within the scope of the constitutional prohibition. But when their effect, though only directed against the remedy, is to destroy or impair the right, by withholding the means of its enforcement, they are obnoxious to the same objection as though they aimed at an entire discharge of the obligation. De Cordova v. The City of Galveston, 4 Tex. 470; Paschal v. Perez, 7 Tex. 348. So the states can not evade this provision, whether acting through their legislatures or in the exercise of the highest form of popular sovereignty, in constitutional convention, by a total denial of remedies which the law gave the obligee when the contract was made. Jacowy v. Denton, 25 Ark. 625.

It is impossible to reconcile the numerous decisions by which it is held that the remedy cannot be denied without impairing the obligation, with others quite as numerous and authoritative where it is maintained that limita

tion laws and exemption laws are valid, and may be effectually interposed against the claims of those holding antecedent demands, simply upon the ground that they affect the remedy and not the obligation. Nor is it necessary to follow the courts as they undertake to draw the line dividing stay laws which withhold the remedy for a "reasonable time," and are therefore constitutional, from such as withhold it for so long a time as to amount to a substantial denial of any remedy at all, and consequently impair the obligation. But cases have been herein cited indiscriminately where this clause of the constitution has been interpreted and applied to these statutes and to insolvent laws.

The principle upon which the remedy may be altered so as to operate more favorably to one of two parties to an existing contract, without contravening the constitutional prohibition, has been applied to the construction of laws for the benefit of poor debtors, or abolishing imprisonment for debt, and even where the statute which it was claimed impaired the obligation by affecting the remedy, was simply an extension of the jail limits. With a few exceptions, it has been decided that this peculiar remedy may be denied or abridged without impairing the obligation of the contract. Bronson v. Newberry, 2 Doug. (Mich.) 38; Springer v. Foster, 2 Story, 381 (cases cited), Story on Const. 250 (cases cited). See also, Dash v. Van Kleeck, 7 Johns. 477. The case of Bronson v. Newberry, supra, was an action upon a bond given for the release of an imprisoned debtor, under a statute in force at the time, but which was subsequently repealed, and the court held that an action could not be maintained thereon, for an escape prior to the repeal of the law.

A statute giving the debtor his election to discharge his debt by a surrender to the creditors of the property purchased instead of paying for it according to the terms of the contract, unquestionably goes beyond the remedy when applied to prior transactions, and destroys the obligation. For this reason it is prohibited by the constitution. Abercrombie v. Baxter, 44 Ga. 36. For the same reason as we have already seen by cases cited in a former number of the JOURNAL, a surrender of property by an insolvent debtor to an assignee for the benefit of all his creditors,

would be equally ineffectual to discharge obligations previously assumed. But this does not prevent the passage of laws protecting the property of insolvent debtors, when so assigned, from execution or attachment by non-participating creditors. A statute authorizing a debtor to assign his property for the benefit of creditors, gives neither him, his assignee nor the favored creditors, any rights which he had not at common law. So long as the assignment law does not have the effect to divest the rights of prior lien-creditors, nor deprive them of their ordinary remedies against the debtor, but simply authorizes the assignee to take possession of unincumbered property for distribution, and enables him to hold the same against attacking creditors, it is open to no other objections than might be urged against an ordinary purchase from such insolvent debtor. The statute merely restricts the remedy as to the property assigned. Suits may be prosecuted to judgment, and become liens upon future acquisitions precisely as though the assignment had not been made. Hanford v. Paine, 32 Vt. 442; Cooper v. Bowles, 42 Barb. 87; State v. Keeler, 49 Mc. 548; Kuykendall v. McDonald, 15 Mo. 416.

MASTER AND SERVANT.

W.

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fective machinery by the company, on a train of cars of which said Elliott was a brakeman, and it was to recover damages for the killing of her fa ther that Mamy prosecuted this suit. The court and her counsel seemed to have based her right to recover on the second section of our damage act, and in the third instruction for plaintiff, the jury were told, that if they found for plaintiff they should assess the damages at $5,000. Inasmuch as four members of this court adhere to the doctrine announced in the case of Proctor v. H. & St. Jo. R. R. Company, 64 Mo. 112, from which I dissented and still dissent, the judgment herein must be reversed and the cause remanded. Plaintiff's right to recover is derived from the third section of the damage act, and in an action by one authorised to sue by that section, the jury may allow less than $5,000. As the cause will be remanded and probably retried, it is proper to determine another question which is presented by the second instruction given for plaintiff.

The third section of the damage act is as follows; "Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured."

The fourth section declares what parties may sue and the amount of damages to be recovered. The second instruction predicates the right of plaintiff to recover upon proof that defendant failed to provide sound and suitable machinery. if Elliott was not negligent, and was ignorant of the defect in the machinery.

The suit can only be maintained when the deceased, if he had lived, could have recovered damages for his injury; and the same evidence as to the cause of the injury is required in a suit by his representative, that would have been required had he survived and sued for the injury. Would proof of the fact that the employee was injured in consequence of the use of defective machinery, of itself, have made a case against the employer at common law? We apprehend not, and if not, neither will it be sufficient in an action authorized by the third section of the damage act.

In the analogous case of an injury received by one through the incompetency of his fellow servant, in a suit against the common employer, "It is," said Napton, J., in McDermott v. Pac. R. R. Co., "well-settled by the English decisions, that the employment of incompetent agents must be traced to the want of ordinary care on the part of the principal." 30 Mo. 116; Beaulieu v. Portland Co., 48 Me. 291. In other words, proof of incompetency of the fellow servant, and that the injury resulted from such incompetency, is not sufficient, but must be supplemented with evidence that the principal did not exercise ordinary care in the employment of such incompetent servant.

The first instruction for plaintiff recognizes the

law, as we understand it, by declaring that plaintiff had a right to recover on proof that the injury was occasioned by the use of defective machinery, and that defendant was aware of this defect, or that the exercise of reasonable care by defendant would have disclosed it. The doctrine is recognized in Gibson v. Pac. R. R. Co., 46 Mo. 166; Dale v. St. L., K. C. & N. R. R. Co., 63 Mo. 45; McDermott v. Pac. R. R. Co., 30 Mo. 116; Dewitt v. Pac. R. R. Co., 50 Mo. 305.

In nearly all the cases of suits by employees against employer for injuries received by the former, in consequence of defective machinery, the right of plaintiff to recover has been held to depend upon proof that the employer knew of the defect, or by the exercise of reasonable care could have ascertained it. McMillan v. Saratoga & Washington R. R. Co., 20 Barb. 449; Kergan v. Western R. R. Corporation, 4 Seld. 175; M. R. & L. E. R. R. Co. v. Barber., 5 Ohio St. 541; Sherman and Redfield on Negligence, § 99. The question of the vigilance of the defendant was ignored by the court in the plaintiff's second instruction, which was, therefore, erroneous.

The judgment is reversed and the cause remanded. All concur.

NOTE. We are at a loss to know just what the decision in the Proctor case has to do with a case like the foregoing, and the ground of dissent is not obvious. The second section of the damage act expressly limits the recovery therein authorized, where the injury was occasioned by defective or insufficient machinery, to passengers. An employee must resort to the third section in such cases. Of this there never has been any controversy. The controversy has been as to the proper construction of the first part of the second section, which gives a right of action for injuries resulting from the negligence of employees managing machinery.

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1. NOTE OF CORPORATION-- PERSONAL LIABILITY OF MAKERS THEREON.- Where a note read: "The directors of the H. T. Company promise to pay," etc., and was signed by the directors of said company, held, this was the note of the corporation and not that of the individuals who signed it.

2. AMBIGUOUS CONTRACT - INTERPRETATION OF. -Where the language of a contract is indefinite or ambiguous, the interpretation which the parties themselves have given to it, by their conduct, will prevail. WORDEN, J., delivered the opinion of the court: Action by the appellee against the appellants. Demurrer to the complaint, for want of sufficient

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That some payments had been made upon the notes, and that the plaintiff had obtained judgments for the residue against the Huntsville Turnpike Company, and had caused an execution to be issued upon the judgment, which had been returned by the sheriff of said county unsatisfied, and indorsed no property found on which to levy this writ, or any part thereof;" that said Turnpike Company has no property of any kind out of which she can collect her said judgment, or any part of it. And she further avers that at the time of executing said note said company had no solvent stock out of which to pay said debt so contracted.

The second paragraph was much like the first. It alleged the recovery of the judgment against the company for the amount due upon the note, the issuing of an execution thereon, and the return of the same, as in the first paragraph, and it contained the same allegations as to want of "solvent stock" at the time of the execution of the note.

The action was evidently based upon section 25 of the act authorizing the construction of plank, etc., roads, 1 R. S. 1876, pp. 654, 662, which reads as follows: "The directors of any company that may be formed under the provisions of this act, shall be liable in their individual property for any debt they may contract in the name of the company, over and above the solvent stock of such company."

It is claimed that the complaint was bad, because it did not aver that the defendants were directors of the company at the time the debt in question was contracted. This, doubtless, should be shown by the complaint, but it seems to us to have been sufficiently shown. The note executed by the defendants purports to have been executed by them as directors of the company. This shows sufficiently that they were then directors. It will not be presumed, in the absence of any averment or showing to that effect, that the debt was contracted previous to the execution of the note.

The objection to the complaint is not well taken. But the motion for a new trial should have prevailed. It devolved upon the plaintiff to show, in order to hold the defendants personally liable, that, at the time the debt was contracted, it exceeded the solvent stock of the company.

There was no evidence on this point given by the plaintiff, but, on the contrary, it was proved, on the part of the defendant, that, at the time of the

execution of the note, the company owed no other debts, and that, at that time, there was $1,750 of solvent stock unpaid."

It is claimed, however, by the appellee, that the defendants are personally liable upon the note as the makers thereof, without reference to the statute above set out.

The note would seem to have been the note of the company, and not that of the directors who signed it. The promise was made by them as directors of the company, and not as individuals. Pearse v. Welborn, 42 Ind. 331. See also Hays v. Crutcher, 45 Ind. 260. But if the point were doubtful the plaintiff, herself, has put a practical construction upon the note by treating it as the obligation of the corporation, and not that of the individuals who signed it as directors. She has sued the corporation upon it, and obtained judg ment. It is said in a late work by a well-known legal writer that, "in a doubtful case, the interpretation which the parties themselves have, by their conduct, practically given their contract, will prevail." Bishop on Contracts, sec. 598.

In the case of Chicago v. Sheldon, 9 Wall, 50, 54, it was said by Mr. Justice Nelson, that, "in cases where the language used by the parties to the contract, is indefinite or ambiguous, and hence of doubtful construction, the practical interpretation by the parties themselves is entitled to great, if not controlling influence." Morris v. Thomas, 57 Ind. 316.

We need not decide whether the plaintiff would be absolutely estopped to claim that the note was the obligation of the individuals who executed it as directors, she having sued upon it as the obligation of the company, and recovered judgment, but we think it clear that under the circumstances the note should be regarded as the obligation of the company, and not of the individuals who signed it. This accords with the reasonable construction of the instrument itself, and the interpretation put upon it by the plaintiff. Judgment reversed and cause remanded for a new trial.

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Appeal from so much of the judgment recovered in the action as adjudges the defendant, Gearty, to be liable for any deficiency unpaid after the sale of the mortgaged premises.

DANIELS, J., delivered the opinion of the court: The action was brought for the foreclosure of a mortgage on premises in the city of New York, made by Joseph L. T. Smith and George H. Smith to James R. Whiting, deceased, to secure the sum of ten thousand dollars.

J. L. T. Smith and wife, and Geo. H. Smith and wife, afterwards conveyed the mortgaged premises to Thomas Gearty. The deed contained the following clause: "Subject, nevertheless, to two certain indentures of mortgage, amounting in the aggreate to $15,000, which the party of the second part hereby agrees to assume and pay off, the same being a part of the consideration of this conveyance."

The mortgage sought to be foreclosed is one of the mortgages referred to. Joseph L. T. Smith and Geo. H. Smith, by an instrument dated December 13, 1876, released and discharged the said Thomas Gearty from his assumption of the payment of the mortgage in question. The complaint prays for a deficiency judgment against Thomas Gearty. The answer of Thomas Gearty sets up the release, and asks that in so far as the complaint prays for a deficiency judgment against him, the prayer of the complaint be denied. The court, at special term, directed the usual judgment of foreclosure, and also that the defendant, Thomas Gearty, pay to the plaintiff any deficiency that might arise.

The release was executed after the obligation of the defendant had become known to the plaintiff, and after the commencement of this action, one of the objects of which was to enforce the liability created by means of it. The effect of the deed and the acceptance of it by the defendant, was to bind him personally to the performance of the obligation mentioned in it; and that was to pay off the mortgages assumed by the grantee. With the mortgage in suit the grantors had executed their bond for the payment of the debt. They had become personally bound themselves, and for that reason, within the earlier as well as the later cases, the clause by which the defendant, as grantee, assumed payment of the same debt, charged him with a personal liability to the owner of the mortgage. Trotter v. Hughes, 2 Kernan, 74; Belmont v. Cowan, 22 N. Y. 438; Burr v. Beers, 24 N. Y. 178: Ricard v. Sanderson, 41 N. Y. 179; Thorp v. Keokuk Coal Co., 48 Id. 953; Thayer v. Marsh, decided by this general term, July, 1877. And in that respect the case differs from the agreements for indemnity, which formed the subject of consideration in Simson v. Brown, 13 N. Y. Supreme Court Reports, 251, which was afterwards reversed by the court of appeals, and Merrill v. Green, 55 N. Y. 270.

The question, and the only question in this case, is whether that liability can be released by the grantor, through whose instrumentality it was created, after it has become known to the party intended to be benefited by it, and he has brought his action to enforce it.

In the absence of notice of its existence, or acceptance of the obligation by the party to whom

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