APPEALS FROM THE COURT OF CLAIMS.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court:
In his celebrated judgment in Earl of Chesterfield v. Janssen, 2 Ves. Sen. 125, 155, Lord Hardwicke arranged all the forms of fraud, recognized by equity, in four classes, the first two of which he gives in these words:
"1. Then fraud, which is dolus malus, may be actual, arising from facts and circumstances of imposition; which is the plainest case. 2. It may be apparent from the intrinsic nature and subject of the bargain itself; such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other; which are unequitable and unconscientious bargains; and of such even the common law has taken notice; for which, if it would not look a little ludicrous, might be cited James v. Morgan, 1 Lev. 111."
The case referred to by the Lord Chancellor was ruled by Sir Robert Hyde, then at the head of the King's Bench, and is reported in 1 Levinz, 111, in these words:
"Assumpsit to pay for a Horse a Barley-Corn a Nail, doubling it every Nail; and avers that there were thirty-two Nails in the Shoes of the Horse, which, being doubled every Nail, came to five hundred Quarters of Barley.And on Non-Assumpsit pleaded, the Cause being tried before Hyde at Hereford, he directed the Jury to give the Value of the Horse in Damages, being $: 8, and so they did. And it was afterwards moved
in Arrest of Judgment for a small Fault in the Declaration, which was overruled, and Judgment given for the Plaintiff."
James v. Morgan is cited by Lord Chief Justice Hale, 1 Ventris, 267, Lord Eure and Turton, note, to the point that "upon certain contracts the jury may give less damages than the debt amounts to," and also in Bacon's Abridgment, Damages, D. 1, together with Thornborough v. Whiteacre, 6 Mod. 305; S.C. 2 Ld. Raym. 1164, sub nom. Thornborow v. Whitacre; to the same point, stated thus: "Though in contracts the very sum specified and agreed on is usually given, yet if there are circumstances of hardship, fraud or deceit, though not sufficient to invalidate the contract, the jury may consider of them and proportionate and mitigate the damages accordingly."
In Thornborough v. Whiteacre, the plaintiff declared that the defendant, in consideration of 2s. 6d. paid down, and $: 4 17s. 6d. to be paid on the performance of the agreement, promised to give the plaintiff two grains of rye corn on a certain Monday, and to double it successively on every Monday for a year; and the defendant demurred to the declaration. Upon calculation, it was found that, supposing the contract to have been performed, the whole quantity of rye to be delivered would be 524,288,000 quarters. The court recognized the case of James v. Morgan as good law, and said that though the contract was a foolish one, the defendant ought to pay something for his folly. "The counsel for the defendant, perceiving the opinion of the court to be against his client, offered the plaintiff his half crown and his cost, which was accepted of, and so no judgment was given in the case."
In Leland v. Stone, 10 Mass. 459, James v. Morgan and Thornborough v. Whiteacre are referred to with approbation, and the principle of mitigating the damages applied, as also in Cutler v. How, 8 Mass. 257; Cutler v. Johnson, 8 Mass. 266; and Baxter v. Wales, 12 Mass. 365. And see Greer v. Tweed, 13 Abb. Pr. N.S. 427, and Russell v. Roberts, 3 E. D. Smith, 318.
Mr. Justice Swayne remarks, in Scott v. United States, 12 Wall. 443, 445: "Where parties intend to contract by parol, and there is a ...