as was within the contemplation of the parties, it was not matter for recoupment, but if it was within the contemplation of the parties at the time the contract was made, it was the subject-matter of recoupment.

4. Parol evidence, we think, was admissible to show whether such damage was in the contemplation of the parties. The contract named a time for the machinery to be ready to be put up, and the parol evidence simply went to illustrate the question of whether that time was of the essence of the contract, and whether the purchase of cotton-seed in advance and therefore the damage which resulted from supplying a stock of seed and keeping it on hand with a view to having it ready to run the machinery when the time arrived, was within the contemplation of the parties. There was no error in the controlling principles applied by the court in the trial of the

case.

5. Van Winkle represented the firm of which he was a member in agreeing to the terms and stipulations of the contract. That he was competent as a partner to contract in behalf of the firm touching its business is not controverted, but it is said that he could not, without some special delegation of power to him by his copartners, render time of the essence of any contract, and bind the firm to abide the legal consequences of so doing. We see no virtue in this position, except that of bold and courageous novelty.

6. When a manufacturer contracts to supply a first-class article, there is no reason for understanding him as stipulating with reference to his own productions, and them only, as a criterion. Why should he be allowed to make the standard and the article both, unless for so doing he provides expressly in his contract? A first-class cotton-seed oil mill and a firstclass Van Winkle cotton-seed oil mill might be very different articles, and very different in value. First-class machinery of a given kind is such as corresponds with the best of the kind in general use, not merely with the best of a single manufacturer; unless, indeed, the two superlatives coincide, in which case to realize one would be to realize the other also.

7. It was urged in argument that receiving the machinery was a waiver both of its defects and of damages resulting from its non-delivery in due time. Why so? After expensive preparations to have and use a mill, it was probably much better to have one of inferior quality than none at all. Besides, it was perhaps only by trial that the defects were discoverable

by the purchasers. Indeed, the evidence appears to so indicate. Under the circumstances, there was no obligation to return the machinery or to offer to return it. The purchasers had a right to rely upon its being first class until it proved to be otherwise, and then they had a right to stand upon the warranty of the manufacturer, instead of rescinding or offering to rescind the contract of purchase.

As to the damages resulting from delay, these had already been sustained when the mill was received; its reception, in so far as it affected them at all, could only hinder more from accruing; it certainly could not increase them. There was no inconsistency between reception of the machinery and retention of the claim for damages on account of delay to furnish it by the time stipulated. To hold that there was a waiver by implication would be very unreasonable.

It was also urged that the purchasers lost the right to go upon the manufacturers for charges or reduction of price in consequence of the machinery being inferior, because it appeared, or could be made to appear by evidence, had the evidence not been improperly rejected, that the mill was not in fact used by the purchasers, but was sold or transferred to a corporation created to run it. We are unable to see how any sale or transfer made by the original purchasers would protect their vendors from duly accounting to them upon any covenant or warranty connected with that purchase. Such covenant or warranty would not pass with the machinery to the corporation or second purchaser, so as to shift the right of action to the new party. No principle is in sight which would either divest the first purchasers of their right of defense as against the purchase-money, or invest the new party with any right whatever as against the manufacturers or first vendors.

8. It was complained that general questions to a witness on the stand who was one of the parties were not proper questions; that he ought to have been interrogated specifically, and not in a general way. We think there is no rule that requires a party, when a witness, to be examined differently from other witnesses, and that to ask him to state the facts and let him state them is a proper mode of examination. If anything comes out in the course of his statement that is not admissible evidence, it can be objected to, and in this case might have been objected to. There was probably some of the witness's evidence that was objectionable; but it was not objected to. The mode of question was the point of objection, and we think

the ruling of the court was correct. Section 3879 of the code, as to examination by written interrogatories, does not apply when the witness is under examination orally in open court.

9. It was complained that some evidence was rejected; and we think some of it was probably admissible, but its rejection would not be cause for a new trial, under the view we take of the case.

10. The verdict was for so much with interest, no time being specified from which interest was to be computed. For this reason, the verdict is alleged to be wanting in sufficient certainty. We think, as the principal found was less than the last installment of the price, the legal import of the verdict is that interest is to be counted from the maturity of that installment. And the time of maturity is fixed by the written contract declared upon. Id certum est quod certum reddi potest.

The court did not err in denying the motion for a new trial. Judgment affirmed.

DAMAGES-MEASURE OF, FOR A BREACH OF CONTRACT: See extended note to Western Union Tel. Co. v. Cooper, 10 Am. St. Rep. 778 et seq. As to the measure of damages for which carriers are liable by reason of delay in delivering freight under their contracts of carriage, see Savannah etc. R'y Co. v. Pritchard, 77 Ga. 412; 4 Am. St. Rep. 92, and note 96; Ayers v. Chicago etc. R'y Co., 71 Wis. 372; 5 Am. St. Rep. 226, and note 233. No action will lie for mere speculative or remote damages by reason of a breach of a contract: Bridges v. Lanham, 14 Neb. 369; 45 Am. Rep. 121; Fitzsimmons v. Chapman, 37 Mich. 139; 26 Am. Rep. 508; Coweta etc. Co. v. Rogers, 19 Ga. 416; 65 Am. Dec. 602; Griffin v. Colver, 16 N. Y. 489; 69 Am. Dec. 718; Cooke v. England, 27 Md. 14; 92 Am. Dec. 618; Abbott v. Gatch, 13 Md. 314; 71 Am. Dec. 635; Worcester v. Great Falls Mfg. Co., 41 Me. 159; 66 Am. Dec. 217; Muldrow v. Norris, 2 Cal. 74; 56 Am. Dec. 313; Blanchard v. Ely, 21 Wend. 342; 34 Am. Dec. 250; Hewlett v. C., N. O., & T. R. R. Co., 65 Miss. 463; Weller v. Oregon etc. R'y & Nav. Co., 15 Or. 153; San Antonio v. Strumberg, 70 Tex. 379; Stern v. Rosenheim, 67 Md. 503; but a loss of profits, which may have resulted from a fulfillment of the contract, may be compensated for in damages: Griffin v. Colver, 16 N. Y. 489; 69 Am. Dec. 718; Simmons v. Brown, 5 R. I. 299; 73 Am. Dec. 66; Hoy v. Gronoble, 34 Pa. St. 9; 75 Am. Dec. 628; Adams Ex. Co. v. Egbert, 36 Pa. St. 360; 78 Am. Dec. 382.

DAMAGES. — Loss and profits arising out of delays in furnishing machinery under contracts therefor: See McKinnon v. McEwan, 48 Mich. 106; 42 Am. Rep. 459, and particularly note 461–465. Loss of profits as an element of damages: See extended note to Griffin v. Colver, 67 Am. Dec. 724–727; note to Sitton v. McDonald, 60 Am. Rep. 488-496. Proximate cause of damages for which a recovery may be had: See note to Lehigh etc. R. R. Co. v. McKeen, 35 Id. 649-651; note to White v. Conley, 52 Id. 157-166; note to Campbell . City of Stillwater, 50 Id. 569–574; note to Heney v. Dennis, 47 Id. 381– 387; note to Brown v. Chicago etc. R'y Co., 41 Id. 53–58; note to Forney v. Geldmacher, 42 Id. 390-393.

DAMAGES FOR BREACH OF CONTRACT - RECENT CASES. -Where time is not of the essence of the contract, no damages are recoverable for delay in fulfilling the terms of such contract, where proof shows that the contract was completed as soon as plaintiff needed it: Erskine v. Johnson, 23 Neb. 261. Where goods are sold for a special purpose, and vendor has notice that a failure to deliver them according to contract will occasion special damages by suspension of work, he is liable for all damages naturally resulting from such suspension so caused: Vickery v. McCormick, 117 Ind. 594. The measure of damage for failure to deliver personalty as per contract is the difference between the sale price and the market price at the time of actual delivery: Smith v. Snyder, 82 Va. 614. Measure of damages for failure to keep a ditch in repair is the money actually paid out to keep such ditch in repair, which was rendered necessary by defendant's failure to keep it in repair: Orr Water Ditch Co. v. Reno Water Co., 19 Nev. 60. When a person undertakes any duty or trust, the law presumes that he contracts to use skill, integrity, and diligence, and failing in any of these, such a one is guilty of a breach of contract: Hart v. Barnes, 24 Neb. 782. And in a suit for breach of contract for manufacture of a machine for agricultural purposes, the manufacturer having been informed that such machine was to be used in Louisiana, plaintiff may prove the market price of such machine in Louisiana as an element of damages: Alabama Iron Works v. Hurley, 86 Ala. 217.

PARTNERSHIP — POWER OF ONE PARTNER TO BIND FIRM. — During the Existence of the Partnership. - For a general discussion of the law on this subject, see Lawson's Rights and Remedies, secs. 645, 646. One partner is a general agent for his firm within the scope of partnership business: Deakin v. Underwood, 37 Minn. 98; 5 Am. St. Rep. 827; London Savings F. Society v. Savings Bank, 36 Pa. St. 498; 78 Am. Dec. 390; Barker v. Mann, 5 Bush, 672; 96 Am. Dec. 373. But one partner has no authority to make a general assignment for the benefit of creditors: Shattuck v. Chandler, 40 Kan. 516; 10 Am. St. Rep. 227, and note 231. And where a firm bought and paid for property, and the vendor deposited the money received from the firm with one of the partners, to be held till the firm should be satisfied as to the title, the rest of the firm, not knowing of such deposit, were not responsible for it, although the purpose of the partner receiving it was to hold it as an indem nity for the firm's benefit: Battle v. Street, 85 Tenn. 282; compare Perth Am boy Terra Cotta Co. v. Wood, 124 Pa. St. 367. Nor is one partner bound by a sealed instrument executed by his copartner in the firm name, unless a subsequent ratification or special authority to do so is shown: Sibley v. Young, 26 S. C. 415. So one of two copartners who executed a mortgage cannot, without the other's consent, authorize the mortgagee to vary the terms of sale prescribed therein: Arnold v. Green, 15 R. I. 348. But one member of a firm can mortgage the personalty of the firm to secure the payment of partnership debts without the knowledge or consent of other members of his firm: Hembree v. Blackburn, 16 Or. 153. And one partner can bind his firm by a promissory note given for merchandise for such firm: Little Grocer Co. v. Johnson, 50 Ark. 62. For partner's power to bind his firm as sureties, see extended note to New York etc. Ins. Co. v. Bennett, 13 Am. Dec. 115–118. As to sales of firm property by one partner, see extended note to Schmidlap↑ v. Currie, 30 Am. Rep. 533–537.

After Dissolution of Partnership: See Lawson's Rights and Remedies, secs. 676, 677, and cases cited in foot-notes. After dissolution, one partner cannot take a note in his own name, intended for his own use, as a settlemen' of a claim due the firm: Lennette v. Starr, 66 Mich. 539. After dissolution

no partner can create a cause of action against the other partners except by a new authority conferred for that purpose: Woodson v. Wood, 84 Va. 478. After dissolution no partner can bind the firm: Allen v. Logan, 96 Mo. 591; Brown v. Watson, 66 Mich. 233; Hurst v. Hill, 8 Md. 309; 63 Am. Dec. 705, and note; White v. Tudor, 24 Tex. 639; 76 Am. Dec. 121, and note; and compare Clement v. Clement, 69 Wis. 599; 2 Am. St. Rep. 760. As to a partner's powers after dissolution, generally, see extended note to Chardon v. Oliphant, 6 Am. Dec. 574-776; note to Van Keuren v. Parmelee, 51 Id. 330-332; note to Shields v. Fuller, 65 Id. 295-303.

HARMLESS ERRORS, OR ERRORS WHICH WILL NOT WARRANT A REVERSAL: See Hill v. Finigan, 77 Cal. 267; 11 Am. St. Rep. 279, and cases cited in note thereto; Anderson v. State, 27 Tex. App. 177; 11 Am. St. Rep. 189, and note.

MATTHEWS V. HUDSON.

(81 GEORGIA, 120.]

WILLS-ESTAtes — RemainDERS. — A devise made by a mother to a trustee for her son in 1854, providing that if the son should die without issue, the trustee was then to sell the property, and equally divide the proceeds, placing the same in the hands of another trustee for the other children of the testatrix, creates a fee in the son determinable only upon his dying without issue, and it was the intent of testatrix that the other children should take by executory devise, and not by contingent remainder, so that no remainder was created by implication in the issue of the son; and neither the latter nor the other children can enjoin the devisee from committing waste on the premises during his lifetime.

BILL to construe a will, enjoin the commission of waste, and for damages. The facts appear from the syllabus and opinion.

R. W. Carswell, and Whigham and Hudson, for the plaintiffs. Cain and Polhill, for the defendant.

BLECKLEY, C. J. The will does not expressly limit the son's interest, as beneficiary, to his life, nor is anything appointed for the trustee to do except to sell, distribute the proceeds, and pay them over to another trustee in case of the son's death without child or children. No power of sale or management is conferred on the trustee, to be exercised during the life of the son, and the trust was to become active in the one event only, that is, death, without child or children. The devise, legally speaking, as to the measure of the estate taken by the son, is not materially different from what it would have been if no trustee had been interposed, but the gift made directly to the son, and then to the other children of the testatrix on the contingency mentioned. The trust has

AM. ST. REP., VOL. XIL-20