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far as the remedy for its enforcementi5CQlwerned. Tpe rule is fundamental that a contract will ,not btl specifipally ,enforced unless it is oblig.atory on both parties, nor unless. both parties lJ,t the time it is executed have the right to resort to equity for its specific enforcement. Marble Co, v. j?ipky, 10 Wall. 34:0j,,Bodine v. Glading, 21 Pa. St. 50; Duvallv. Myers, ,2 Md. Ch. 401; Gel'1nan v. Machin, 6 Paige, 288; Boucherv. VanIn.t8kirlc,2 A. K. Marsh. 345; Duff v. Hopkins, 33 Fed. Rep. 599,...608. And where acontra,ct when execlltedis notspecifically enforceable against parties, he cannot, by subseClllerit performilnceof those conditions that could not be .specifica1ly enforced,. put himself in a position to dtlIMnd specific enforcement against the other party.. Hope v. Hope, 8 De Gex,M. & G. 731-736';Fl'y, Spec. Perf. (3d Ed., Amer. Notes,) § 443. In the case at bar the agreement of Norris to procure a warranty deed of land at the time belonging to another,was of that nature that only an action at law would lie for a breach: of the ag,reement. As'Fox <lould Dot compel specific performance of the contract when made,and only had his remedy at law by a suit for damages, the complainant must . resort 'to the sarrieremedy., .. ' The bill is dismissed, without prejudice to the complainant's right to sue, at law.

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Under Rev. St. Mont. 1879, p. 508, § 2, l'rqviding that action for nllgligel)tly cau:siilg death ,shall be llrought' by the perlloi131' representative for the exclusive benefit. of. the widow. a\ld".next, of kin, it 1;()the action.that there be a ' widow or next of kiIi; and that fact must be alleged.in the complaint. SA1lfE-W AlYER OF' DEFlliQTiJ. ' Where the complaint failed to allege the existence of next of kin; and evidence of the fact.was admitted qver defeJ:ldant's and,his exception to the is saved, the defect .is not 'cured by verdict, and plaintil! will not be'held to have waived his objection by his,failure to demur.' ' As thewid\lw and next Of ,kin are entitled tqth,e of the action irrespective of any 'legal claim on -the decea'sed, if he had sur"'ived, for support, theconiplaint is not insufficient because it fails· to' set. out specifically; the damage which they sustained by 1I-i8 death.. -'
ElAME-DAMAGES: 01/ DAMAGES. " '

DEATE BY WBO"'GFUL ACT-PABTIES.....PLEADING. .

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In estimating'the damages the jury must ttike into coliilideration the age of deceased, tbe'probability .of the extent ,of hisllfe, his wages, personal habits, tion, and capallity to labor and make, and save money,anq the probability that if be hadJlived he would have been df some pecuniary benefit to them; and,where it had a sister l\.ndtWo br.otherslivipg;in Deomarkjthat he was a,briqgllcarpenter, and re.oeived $2 a daYj thatheJlad been at work three or four motlths, and had sent some money to'his 'sister, {how much did not appear;> _and "tnere nO' evidence,.s 1'.0 his .his capacity for' earning l}nft:saving money"pr all to. the .9f pecuIiilLl'ybenefit 1"1 ;be by.t;tl.e,next of kin from' hIs estate it he had lived longer,""-'a'Verdict Of'$1.750 will'be Bet aside as e¥cemYe, , ' . : . ; : !' , '

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408

FEDERAL REPOnTER,

vol.4S.

. At Law. On motion for new trial. The language of section 2 of the statute under which this action for negligently causing the death of plaintiff's intestate waS brought is as follows: .
"Every such action shall be brought by and in the name of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive. benefit of the widow and next of kin of such deceased person. and shall be distributed to.such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and hi. every such action the jury may give such damages as they shall deem a fair and just compensation. with reference to the pecnniary injuries resulting from such death, to the wife and next of kin, not exceeding the sum of $2,000: provided, that.every such action shall be commenced within two years after the death of such Rev. St. Mont. 1879, p. 508.

Kinsley e:t- Knowles, for plaintiff. OuUen, Sandera e:t- SheUon, for defendant.
KNOWLES, J. This is an action on the part of Andrew Serensen,as the legal representative of Niels Serensen, deceased, against the Northern Pacific Railroad Company, for damages for negligently causing the death of the said Niels Serensen. The cause was tried with a jury, who found a verdict for plaintiff, and assessed his damages in the sum of $1,750. The defendant has moved the court for a new trial upon substantially the following grounds: (1) The complaint does not state facts sufficient to constitute a cause ot .action in this: there is no allegation in the same that the deceased had any next otkin, and there were no allegations therein of any damage said kin suffered on account of his death. (2) That the evidence did not warrant the jury in finding for the plaintiff more than nominal damages, and hence the verdict was contrary to and unsupported by the evidence in this particular. . The complaint fails to state that the deceased had any widow or next of kin. There was no claim that he left a widow. Should the plaintiff have set forth that the deceased left any next of kin surviving who might be entitled to receive any damages that might be recovered against defendant? The statute of Montana upon the subject of actions by 'personal representatives of deceased persons whose death was caused by negligence will be found on page 508, Rev. St. Mont. 1879. The statute of Illinois upon this subject will be found recited in the case of Railroad 00. v. Barron, 5 Wall. 90. A comparison of these two statutes will show that in words they are identical, save the Illinois statute permits a verdict for damages in such cases only in the sum of $5,000, while the Montana statute permits one for the sum of $20,000. The decisions of the supreme court of Dlinois are uniform to the effect that a declaration in an action brought under this statute should set forth that the deceased left a widow or next of kin. Railroad 00. v. Morris, 26 Ill. 400; Railroad 00. v. Shannon, 43 Ill. 338; Coal 00. v.Hood, 77 Ill. 68; Holum v. Daly, 106 Ill. 131. There may have been some wavering as to the correct rule in such actions in New York, whose statute the

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supreme court of Illinois, in Railroad 00. v. Morris, says is the same as the statute of its state. The case of Safford v. Drew, 3 Duer, 633, is positive to the effect that such allegations should be made. In Estee's Pleading, in section 1853, it is claimed that the later caSeS in New York have established a doctrine different from this, and he cites Quin v. Moore, 15 N. Y. 463; Oldfield v. Railroad Co., 14 N. Y. 316; Dickin8 v. Railroad Co., 28 Barb. 41; Keler v. Railroad 00.,17 How. 152. An examination of these cases will show that they do not support upon this point that claim. The casl;l of Harper v. Rltilroad Co., 36 Fed. Rep. 102, is not in point. In that in West Virginia the administrator can recover, the case itself shows,if there were no widow or next of kin. The decision in that case Was based upon the statute of that state. The Fed. Rep. 195, does not, as I understand case of Howard v. Canal the case, maintain the doctrine claimed... But if it does, I cannot agree with the view that there should be no allegations in a complaint as to there being any widow and next at kin. Unless there be a surviving widow or next of kin, there is no one to whom the damages recovered for injuries resulting in death can go. The authorities generally agree that the amount recovered in such cases goes to the widow and next of kin, or to the next of kin to the exclusion of the creditors. Quin v. 'Moore,15 N. Y. 436,437; City of Ohicago v. Major, 18 Ill. 348-358. It cannot be it was contemplated that in any case the pers()nal sentative might recover a judgment for injuries resulting in death, and then afterwards institute an inquiry as to whether or not there was any one entitled to the amount recovered on this judgment. If it is necessaryto prove on the trial there is a widow and next of kin, this fact should be alleged. Certainly the defendant would have the right to . controvert this fact. The complaint was fatally defective in not stating that there were next of kin of the deceased,in my opinion. It is urged, however, that there was evidence ·of next of kin introduced in this case, and that this defect was cured hy the verdict. The defendant, however, objected to the introduction of this evidence, and has embodied his exception in his bill of exceptions. Where material evidence is introduced under the objection of the party against whom the same is offered, and it was error to have admitted the same, the rule urged by the plaintiff does not apply. Neither do I think a defendant is bound to exercise his objection to a defective complaint by demurrer. The plaintiff is responsible for his pleadings and its defects, and not the defendant. .The civil practice act of Montana says the objection that a complaint does not state facts sufficient to constitute a cause of action is not waived by a failure to demur to the same. The next point for consideration is as to whether there should have been alleged in the complaint special damages to the next of kin of the deceased; in other words, should the complaint have shown that the next of kin suffered a pecuniary loss on account of the death of the de'Ceased? 1 think the case of Railroad Co. v. BarrO'/1" 5 Wall. 90, must be considered as having settled that question, as far as the federal coutts

410

I'EDERAL REPORTER,

vol. 45.

are concerned, inthenegative.·· In that case Justice NELsoN,speaking: for the court, said: "it hall been suggested frequently in cases under these acts, for they are found in Several of Lhe: states, and the suggestion is very much urged in this case, that the widow an\inext of kin are not entitled to recover any damages unless it be shown that they had a legal claim ou the deceased. if he had survived, for support. The two sections. of the act, taken together, clearly negative any such construction, as a suit is ,given against in every caseby the representatives for the benefit of the widow and next of kin, where. if death had not ensued, the injured party could have maintained suit. The' only relation mentioned by the, statute to the deceased essential to the maintenance of this suit is that of widow or next of kin. To say that they must hl\ve a legal claim on him forsuppprt would bean interpolation in the statute. cha,uging the fair import of its terms, and hence not warranted. This construction we believE! Aall been rejected by every court before which the question has been presented." , '

If the damages which may be recovered are not confined to the legal pecuniary loss .sustained by the widow and next of kin, I cannot see any necessity for-setting forth specifically the damages sustained. Under the general allegation of damages. evidence can be introduced of all damages which naturally and ;necessarily would result from the death of the deceased. 1 Suth. Dam.763; Wade v. Leroy, 20 How. 34. The loss to the estate of deceased from his failure to labor and save money would be the natural and necessary result of his death. v. Railroad Co., 14N. Y. page 317 of opinion. I think in this particular the complaint was sufficient. How can the pecuniary damages the widow or next of kin have suffered be determined? ,Is it sufficient to prove the killing of the deceased, and the of the defendant? Undoubtedly such proof might justify the jury in finding nomin!ll damages, but how much more? One of the most liberal cases on this subject of, estimating damages in such cases is that of Hough1cirk v. President, etc., 92 N. Y. 225. In speaking of the jury, the court says: "They are reqUired to judge. and not merely to guess; and therefore such basis for their judgment as the facts naturally capable of proof can give should always be present, and is rarely, if ever, absent."
Again, in speaking of the value, of human life: "The Ilamages tathe next of kin in that respect arenecessllrily indefinite, prospective, and They canliOt be proved with even an approach to accuracy, and yet they must be estimated and awardt'd, for the statute so commands. But eveH in'such casE'S there is and there must be some basis in the proof for the.estimato, and that w.as given here, and always has been given. Human lives are not all of tlw same value to the survivors. :'l'he age and sex, the geueral h6\llth and ,intelligence. of the person killed, the situation and condition of the survivors, ?,nd their relation to the these elements furnish some basis forjudgment." In the case of CoUitnsv. Davidson, 19 Fed. Rep. 83, Judge MCCRARY, in instructing a jury, lays down the following as elements in estimating damages:

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. ,amount, if you come to the question, you may coollider ao,r 1)efore you tending to show wbat was the reasonable expe<;tation 'of pecunillfY to said heirs from the conthwance of. his life. The age of ,the deceased. bis pecuniary circumstances, his ha:hits of industry, IJis'accustomed earnings, measure of success in busIness, a'tld the like, as far .as' tbeyappear in evidence, al'e proper to be 'Co:iJiidllred." ;Inthe of Howard'v. 0a7¥llOo.,40 Rep. 195, Judge

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. "lntpis case the decease4 bad foq,ny one ,up time of his death, in middle life. He was DO qJol'e likelyto accumulate'pl'0t. erlyfrom then forward than before. The deprivation of bis society, iffection: or counsel is not to be ·considel'ed. The actual. 'probable, pecuniary loss is all that the statute covers and can be allowed for. Upon the evidence, considering all the probabilities of his future, no just grollnd for finding that he would ever have,accumulated any property for his brothers aOlI sisters is apparent." In this case the court gave only. In the case of Holland v. Brown, 35 Fed. Rep. 43, Judge DEADY took into consideration the age of the deceased, the probability of the extent of his life, the wages he earned, and his personal habits, his disposition, and capacity to labor and make and save money. In the case of Holmes v. Railway 00., 6 Sawy. 294, 5 Fed. Rep. 523, the same distinguished judge says: "Under the statute, the life of the deceased is valued according to his capacity and disposition to be useful, to labor, and to save. The industrious, provident, and skilled are worth more to society than the indolent, improvi. dent, and ignorant, and their death is to be compensated accordingly." In the case of Railroad eo v. Barroo, supra, in speaking of the second section of this statute, the United States supreme court says: "The second restricts the damages in respect both to the principles which are to govern the jury and the amount. They are confined to the pecuniary injuries resulting to the wife and next of kin, whereas. if the deceased had survived, a wider range of inqUiry would have been admitted. It would have embraced personal suffering" as well 3S pecuniary loss, and there would bave beeu no fixed limitation as to the amount," . "So, when the suit is brought by the representative. the pecnnlary Injury resulting from the dpath to the next of kin is eq ually uncertain and indefinite. If the deceased had lived, they may not have been benefited; and. if not, then no pecuniary injury could have resulted to them from his death. tt From these authorities, and others that might be cited, it is evident that there must be some evidence showing that had the deceased lived there would have accrued to the next of kin some property, or there was a strong probability he would or might have been of some pecuniary benefit to them. Nothing is allowed simply for the death of the deceased, separated from the pecuniary 10'3s his widow or next of kin may suffer on accountthereof. What was the evidence in this case upon which the jury based its verdict as far as damages were concerned? Plaintiff testified that Niels Serensen was. his cousin; that he had a sister and two

:rEDERALREPORTER,VOl.

45.

btothel'lfliving in Denmark. Therewas some evidence that the deceased carpenter, and received about $2 per day wages; that he had boonworldng at this calling for some three or four months, and that heha<f.sentson:;le money to his sister; how much did not appear. There was no evidence as to his age, or as to his capacity for earning or saving money. .'-rhere was. nothing to sh9w what the kin of the deceased ,might reasonably have expected in a: pecuniary way from his estate had he lived any longer. .The jury foqnd a verdict for $1,750 damages. I think, unqer the. evidence and the1'ules that should prevail in estimatiJ;lgdamages in such caSeS, the jury were not warranted in finding any such verdict. Motion for a new trial is sustained.

In re

DOWNING.

In re

DEMUTH.

In

reKAuFMAN.

In re

ZIMMERN.

, (Oircuit Oourt, S. D. New York. February 2,1891.)
CUSTOMS DUTIES-ApPRAISERS' DECISION-REvIEW-RETURN.

'l'he collector assessed a duty of 100 per cent. on the coverings of certain articles as being "designed to evade duties thereoll." The importers protested that they were the usual and necessary coverings of such articles, and,:as such, free of dut!;,!. or else that they should pay duty according to certain enumerations of the tarllI mentioned in the protests. The board of general appraisers sustained the collector's decision. On to review its action in the circuit court the only facts certified in the return were that the coverings were entered a,s free, and that the protests were rejected as not being sufficiently specific. Held, that the return wouldpe sent back as not being in compliance with Act Cong.June 10, 1890, § 15.. requiring the board to return a "certified statement of the facts involved inthe case."

" At L a w . " , Motion for further return of board of general appraisers under, theactof June 10, 1890, entitled "An aot to simplify the laws in relation to the collection of the revenues." Charle8(Juri'e, W. Wickham Smith, and Comstock «Brown, for petition' , . ers. Edward Mitchell, U. S. Atty., and He:nry C. Platt, Asst. U. S. Atty., for· collector.
LACOMBE, Circuit JUdge. In thesecases the collectorliquidated duty at 100 per cent. ad valorem on certain so-called "cases" or "coverings" containing pipes; cigar-holders, opera,-glasses, and mathematical instruments. 'fhe importers protested, claiming that they were the" usual and necessary coverings'"of articles imported and paying duty, and as such were fret! of duty, or, if not free, that they should pay duty only according to one or other of some half dozen enumerations in the tariff" which were severally referred to in the protests. The collector's conten" tion was that they were dutiable at 100 per cent. under the proviso or the seventh section of the act of 1883, as being" designed to evade duties thereon, or designed for use otherwise than in the bona fide trans-