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THE COLUMBUS COMPANY V. HURFORD.

great uncle advice and assistance. He now made application to him again for aid. The uncle deputed his nephew, one of the defendants, to meet young Tate at an appointed time and place, to discuss his embarrassments. At this interview the young man refused to allow any attempt to compromise his debts, and said he would sell his moiety of the estate. Upon which the defendant offered him £7,000, payable in installments. The next day Tate accepted the offer. Before the agreement had been signed, the defendant obtained a valuation by a surveyor, estimating the value of the mines under the entirety, at £20,000. The sale was completed without this valuation being communi. cated to Tate. He having died, his heir filed this bill, impeaching the sale. In his judgment, Sir W. Page Wood, V. C., says : “The broad principle upon which the court acts in cases of this description is, that whenever there exists such a confidence, of whatever character that confidence may be, as enables the person in whom confidence or trust is reposed, to exert influence over the person trusting him, the court will not allow any transaction between the parties to stand, unless there has been the fullest and fairest communication of every particular, resting in the breast of the one who seeks to establish a contract with the person so trusting him. This unfortunate young man being in difficulties of a serious character, or rather which were in his opinion serious, the defendant, Robert Williamson, as representing his uncle, H. H. Williamson, Tate's great uncle and trustee, took upon himself to advise the young man in reference to the arrangement of his difficulties. The young man, having then said that he was determined to dispose of his property, it was then absolutely impossible for Robert Williamson, filling as he did that position of confidential adviser, to enter into any treaty for the purchase of that estate, without communicating to him every particle of information that he himself possessed with respect to

THE COLUMBUS COMPANY 0. HURFORD.

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its value. One most important piece of information, Cope's report as to the value of the minerals, which he put for the whole estate, at £20,000, being in respect of a moiety £3,000 more than the defendants gave for it, minerals, surface and all included, was during the negotiations obtained by the defendant and kept back from the person with whom he was dealing. This circumstance renders it at once impossible that the contract can be maintained. It has been said : What could Robert Williamson have done ? To which I answer, “Why did he not tell this young man to consult some mining surveyor, or Mr. Cope, whom he had himself consulted.'

It is a fallacy to contend that Robert Williamson's mission was limited to seeing if Tate's debts could be compromised, and that his agency ceased with the refusal of Tate to allow his debts to be compounded for." The Lord Chancellor, in his judgment, reviews the whole case, and states the principle in even more decisive and exact terms.

Nor do we think there was any ratification of the release in making of the deed by the mayor of Columbus to the purchasers, for that was the deed of a public officer who was bound to convey to a party occupying the premises, who appeared to have a right to the deed. It was not in any sense nor in any view the deed of the complainant.

The claim interposed for services rendered by the defendant Hurford to the complainant in securing the claim against Mitchell, and negotiating for the ferry, should be allowed the complainant to the extent of what the same was reasonably worth.

The defendant Hurford should be allowed the expense of the management and control of the ferry, the same to be deducted from the gross profits or income of said ferry. He should not be allowed for crossing the members of the Columbus Company free. The defendant Hurford, should

THE COLUMBUS COMPANY V. HURFORD.

be allowed the item of seventy-five or eighty dollars paid to Gutschalk.

The complainant should be charged with the actual value of all property and money received by them from the defendants, in consideration of the pretended release and settlement.

The defendants must be charged with the value of onehalf the ferry and franchise, together with the profits and proceeds thereof. It only remains to be determined how this shall be apportioned among the defendants.

There is no evidence showing that Thomas J. Hurford purchased his interest with notice as to the complainant's claims. As to him the bill must be dismissed with costs. Hays did have notice when he bought, and as he purchased from the principal defendant, O. Perry Hurford, he would have a remedy over against him.

The bill prays, among other things, that the right of the parties may be declared by the court in the decree. It will cause further litigation to settle the relations of the defendants as between themselves in the decree, and it will therefore provide that the amount to be paid be first made out of 0. Perry Hurford, and then in event of his being unable to answer for the whole judgment, execution for due proportion should go against Hays. In order to determine the amount for which Hays may be liable, we must know the date of his purchase, which does not appear in the master's report. And in order to render a final decree, the account between the complainant and defendants must be stated upon the basis of this decree.

A reference must therefore be had touching these matters, and also the rents, profits, proceeds, business and expenses of the concern.

Cause remanded.

SHOFF O. WELLS.

Shoff v. Wells.

1. NEW TRIAL: Assault and battery. In an action for assault and battery, a

new trial will not be granted on account of the smallness of damages awarded by the verdict.

2

-: Error. If it be granted and another trial take place, at which larger

damages are awarded by the jury, all proceedings after the first verdict will be set aside, and judgment be ordered on that verdict.

This was a petition in error to bring up a judgment ren. dered by the District Court for Otoe county, for review. It was an action for damage for an assault and battery, committed by the defendant upon the plaintiff. The cause was tried at the December term, 1868, before the court and a jury. The testimony showed that the plaintiff paid a physician fifteen dollars for medical attendance, rendered necessary by the injuries inflicted upon him, and tended to show that for ten days he was unable to work, and that four dollars per day was what he could have earned. The jury rendered a verdict for seventeen dollars and fifty cents. The plaintiff moved for a new trial on the ground that the damages awarded were inadequate. The court granted the motion. The pleadings were amended and reformed by the parties, and another trial was had at the March term, 1869, before the court and jury, which resulted in a verdict for the plaintiff for thirty-seven dollars and ten cents. The defendant moved to arrest the judgment, which the court refused to do, and entered judgment for the amount of the verdict and costs.

I. N. Shambaugh, for plaintiff in error.

C. W. Seymour, for defendant in error.

CROUNSE, J.

SAOFF V. WELLS.

In article six of the Code relating to new trials it is provided :

“Sec. 315. A new trial shall not be granted, on account of the smallness of damages, in an action for an injury to the person or reputation, nor any other action where the damages shall equal the actual pecuniary injury sustained.”

The reading and interpretation contended for by the counsel for the defendant in error, is that in an action for damages for an injury to the person or reputation, as well as in all other actions, the damages must equal the actual pecuniary injury sustained.

This claim is opposed not only to the letter but to the obvious spirit of the section.

In cases of assault and battery, libel and slander, so many matters in aggravation or justification are disclosed upon the trial, that it is left for the jury to determine, in view of all the circumstances, what should be given as damages. With their findings, courts rarely interfere. Scarcely a case can be found where a new trial has been granted, because of the smallness of the damages assessed. This section, we think, is but declaratory of the practice which has so long obtained.

The case must be remanded with directions to reinstate the first verdict, and to set aside all proceedings subsequent thereto.

Cause remanded with directions.

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