C. B., p. 591; also, Chauter vs. Hopkins, 4 M. & W., 3315. The detriment caused by the breach of a carrier's obligation to accept freight, messages, or passengers, is deemed to be the difference between the amount which he had a right to charge for the carriage and the amount which it would be necessary to pay for the same service when it ought to be performed. NOTE.-See obligation to accept freight, Sec. 2169, ante, and note; Ogden vs. Marshall, 8 N. Y., p. 340. In 2 Parsons on Contracts, p. 173 (5th ed.), he says: "A common carrier is bound to receive and carry all the goods offered for transportation;" and there seems to be no doubt that one who holds himself forth to the public to carry for hire is a common carrier as much in his first trip as in his second, third, or fourth. Fuller vs. Bradley, 25 Penn., p. 120; and compare with Pender vs. Robins, 6 Jones, p. 207, and Cincinnati, etc., vs. Boal, 15 Ind., p. 345. A common carrier failing or refusing to carry goods thereby breaks his contract-that is, violates the obligation the law imposes on his occupation-and the owner, if he can by the exercise of diligence obtain other means of conveyance, is bound to do so and use them, and may recover the loss occasioned by the extra expense, trouble, and delay.-3 Pars. on Cont., p. 194; O'Connor vs. Foster, 10 Watts, p. 418. On the subjects embraced in this and the two succeeding sections, see Chap. V, Title VII, Part IV, Div. III, ante, and notes. Breach of carrier's obligation to receive goods, etc. carrier's to deliver. 3316. The detriment caused by the breach of a Breach of carrier's obligation to deliver freight, where he has obligation not converted it to his own use, is deemed to be the value thereof at the place and on the day at which it should have been delivered, deducting the freightage to which he would have been entitled if he had completed the delivery. NOTE. As to common carrier's liability for the delivery of freight, see Secs. 2118, 2119, and 2194, ante, and notes. Value of freight not converted but not de 51-vol. ii. Carrior's delay. livered. Smith vs. Griffith, 3 Hill, p. 323, settles the question as to the amount of damages for this detriment. As to its value at the time and place where it was to be delivered, see Sedgw. Dam., p. 365; Van Winkle vs. U. S. Steamship Co., 37 Barb., p. 122; Wheelwright vs. Beers, 2 Hall, p. 391. As to how the value is to be ascertained, see Harris vs. Panama R. R. Co., 3 Bosw., p. 7. Deducting the freightage.-Watkinson vs. Laughton, 8 Johns., p. 213; Atkisson vs. Steamboat Castle Garden, 28 Miss., p. 124. As early as the June Term, 1850, the Supreme Court of this State held that the common law obligation of common carriers subjected them to damages in the value of the goods at the port of delivery.-Ringgold vs. Haven & Livingston, 1 Cal., p. 108, and affirmed in Hart vs. Spaulding, 1 Cal., p. 214. Stoppage in transit, by vendor of goods on a credit, protects the carrier, and a refusal to deliver to vendor is a conversion.-Jones vs. Earl, 37 Cal., p. 630, and cases cited by the Court in the opinion. See Secs. 3078, 3079, ante, and notes. 3317. The detriment caused by a carrier's delay in the delivery of freight, is deemed to be the depreciation in the intrinsic value of the freight during the delay, and also the depreciation, if any, in the market value thereof, otherwise than by reason of a depreciation in its intrinsic value, at the place where it ought to have been delivered, and between the day at which it ought to have been delivered, and the day of its actual delivery. NOTE.-As to common carrier's liability for delay, see Sec. 2196, ante, and note. The law, in regulating the measure of damages, contemplates a range of the entire market, and the average of prices, as thus found running through a reasonable length of time.-Smith vs. Griffith, 3 Hill, p. 333. This was so held by Chief Justice Nelson, Cowen, J., dissenting, on defendant offering to prove the goods to be of fictitious value at the time delivery ought to have been made. Depreciation from delay.— Jones vs. N. Y. & Erie R. R. Co., 29 Barb., p. 633; Kent vs. Hudson River R. R., 22 Barb., p. 278; Medbury vs. N. Y. & Erie R. R. Co., 26 id., p. 564; Collard vs. Southwestern R. R. Co., 7 H. & N., p. 79. The case of Jones vs. N. Y. & Erie R. R. Co. goes to the subject of the depreciation in the intrinsic value of the article to be delivered. The other cases relate to the rise or fall in the value at the time the delivery should 3318. The detriment caused by the breach of a warranty of an agent's authority, is deemed to be the amount which could have been recovered and collected from his principal if the warranty had been complied with, and the reasonable expenses of legal proceedings taken, in good faith, to enforce the act of the agent against his principal. NOTE.-One assuming to act as an agent warrants, to all dealing with him as such, that he has the authority he assumes.-Sec. 2242, ante, and note. When an agent is vested with authority to warrant.See Parsons on Contracts, pp. 60-62, and the cases there referred to in notes. Where the agent performs an unauthorized act in the name of his principal, and the principal having placed him in a position to mislead innocent parties, he is responsible to them.Davidson vs. Dallas, 8 Cal., p. 227. What the detriment is deemed to be, see Simons vs. Patchett, 7 E. & B., p. 568. Representations made by an agent, within the scope of his authority, at the time of the transaction, is evidence against the principal.-Neely vs. Naglee, 23 Cal., p. 152. Reasonable expenses in good faith incurred in action to enforce agent's acts against the principal.-See Collen vs. Wright, 8 E. & B., p. 647; affirming S. C., 7 id., p. 301; see White vs. Madison, 26 N. Y., p. 117; see note to Sec. 2343, ante. Breach of authority. warranty of Breach of promise of marriage. 3319. The damages for the breach of a promise of marriage rest in the sound discretion of the jury. p. 252. NOTE.-See Johnson vs. Jenkins, 24 N. Y., "Damages are peculiarly within the power of the jury in cases of this kind (mentioned in the text); for Courts, both in England and in this country, are very unwilling to set aside a verdict in these cases on the ground of excessive damages."-Parsons on Contracts, vol. 2, pp. 68-9, et seq.; Gough vs. Farr, 1 Y. & J., p. 477; Goodall vs. Thurman, 1 Head, p. 209; Smith vs. Woodbine, 1 C. B. (N. S.), p. 660. Bad character of plaintiff being plead by defendant, and his proof failing, may be considered by the jury in aggravation of damages.-Southard vs. Rexford, 6 Cowen, p. 254. As a personal action for such damages, it does not, as a rule, survive or pass to the representative of the injured party.-2 Parsons Contracts, p. 70; Chamberlain vs. Williamson, 2 M. & Sel., p. 408. Neither does it survive against the administrator of the promisor.2 Parsons Contracts, p. 70; Stebbins vs. Palmer, 1 Pick., p. 71; Smith vs. Sherman, 4 Cush., p. 408. Whether damages for seduction may also be given in this action, see 2 Parsons Contracts, pp. 70, 71, and notes. ARTICLE II. Breach of obligation other than contract. DAMAGES FOR WRONGS. SECTION 3333. Breach of obligation other than contract. 3335. Willful holding over. 3336. Conversion of personal property. 3337. Same. 3338. Damages of lienor. 3339. Seduction. 3340. Injuries to animals. 3333. For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not. NOTE.-See notes to Secs. 3274 and 3288, ante. In actions for damages for wrongs the rule is that proof of damage may extend up to verdict of all facts flow- occupation property. 3334. The detriment caused by the wrongful Wrongful occupation of real property, in cases not embraced in of real Sections 3335, 3344, and 3345 of this Code, or Section 1174 of the CODE OF CIVIL PROCEDURE, is deemed to be the value of the use of the property for the time of such occupation, not exceeding five years next preceding the commencement of the action or proceeding to enforce the right to damages, and the costs, if any, of recovering the possession. NOTE.-Formerly, in actions of ejectment, damages were not recoverable, but resort was had to a subsequent action of tre-pass to recover mesne profits.-2 Inst., p. 329; 3 Bl. Com., p. 225; Sayer on Dam., p. 34; also, directly on this point, Van Alen vs. Rogers, 1 Johns. Cas., p. 281; Harvey vs. Snow, 1 Yates, p. 156; Adams on Ejectment, p. 328. In many States, including our own (Cal.), mesne profits, as in fact other damages, are recoverable in an action of ejectment.-Boyd vs. Cowan, 4 Dall., p. 138; Battin vs. Bigelow, Pet. C. C., p. 452; Starr vs. Pease, 8 Conn., p. 541; Dean vs. Chubb, 1 Coxe, p. 466; Beach vs. Beach, 20 Vt., p. 83; Edgerton vs. Clark, id., p. 264. Value.Sedgw. Dam., p. 125, of use of property for how long before suit for damages, see Jackson vs. Wood, 24 Wend., p. 443; 2 Burr., p. 665; 3 Pars. on Cont., pp. 220-1. Under our Code it is competent for the plaintiff to recover real property with damages for withholding it, and the rents and profits, all in the |