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against the wife's estate, this could not prevent presentation of such claims to her personal representatives for allowance in the regular course and a double presentation might and doubtless would result in the allowance of some claims by the representatives of one decedent and their rejection by those of the other, leading to more or less confusion. In our judgment, therefore, the will of the deceased husband does not confer power upon his executors to determine these matters, nor to represent the ultimate devisees or legatees in that behalf. Such ultimate devisees and legatees have a right to be heard. No authorities have been adduced to the contrary of these views. Furthermore, as representatives of the deceased, executors and administrators are answerable so far as they have assets only for the testator's or intestate's debts, covenants or other contracts, not for the debts of other persons. In short, in all cases where the cause of action is money due on a contract to be performed, gain or acquisition of the testator by the work or labor or property of another, or a promise of the testator express or implied, the action survives against the executor. But this case presents no such situation.

Nor does an action at law, in the absence of statute or an express promise by the legal representatives to pay it, lie against an executor for a general legacy, nor for a distributive share of an estate. The statutes in our state upon these subjects are not applicable to the case in hand. The direction, in the will, to distribute the estate after payment of the wife's just debts, is in the nature of a legacy. It is not a contract made by the testator, nor does it furnish the foundation of an action at law to be enforced against the executor.

It may be that the claim is enforceable against the husband's estate by a suit in equity, requiring the payment of the just debts when ascertained, in which proceeding the persons entitled to the estate of the husband whose shares therein would suffer diminution by the payment should be made parties.

The conclusion is that a suit at law cannot be maintained against the executor of the deceased husband to enforce pay

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ment of the wife's just debts, by virtue of this provision of his will, but that the executors of the husband have the right to require the just debts to be first established by a suit against the wife's executor, for it is the wife's “just debts" eo nomine which alone can diminish the estates of the subsequent takers.

On this ground the judgment for the defendant should be affirmed.

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LOUIS DELAMARRE y, CHARLES BOTT.

Submitted March 19, 1909-Decided June 7. 1909.

Where defendant wrongfully stopped a drain leading from the premises

of the plaintiff past those of the defendant the measure of damage is not the cost of a new drain, but the damage sustained by the plaintiff in the enjoyment of his use of his property while the consequence of the wrongful act continue.

On appeal from the District Court of the city of Hoboken.

Before Justices GARRISON, BERGEN and VOORIIEES.

For the plaintiff, James C. Agneu'.

For the defendant, Isidor 11. Brand.

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The opinion of the court was delivered by

VOORHEES, J. This is an appeal from the District Court of Hoboken. Judgment for the plaintiff for $225 damages and costs was rendered.

The plaintiff is the owner of property on New York avenue. The defendant owned property on Kamp place.

Plaintiff constructed a drain for waste water and sewerage from his premises through New York avenue about one hundred feet, thence turning by a right angle into Kamp place, a

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distance of one hundred and ninety feet, and terminating near Palisade avenue, when it came to the surface. The contents of the drain for the remainder of the distance in Kamp place ran upon the surface of the ground in front of defendant's premises, and emptied into the gutter in Palisade avenue. The defendant stopped up the drain. It was constructed of two flagstones placed on their edges for the sides, with a flagstone for the top or covering.

The sole ground for reversal is the admission in evidence of the following testimony on the part of the plaintiff over the objection of the defendant: “Now, Mr. Smith, will you please state, in your opinion, what would be the cost of constructing an eight-inch pipe drain from the place where the water ran off plaintiff's land to Palisade avenue, which makes a distance of two hundred and ninety (290) feet.” The witness answered one dollar

per

foot. This was error. The measure of damage in this case is not the cost of a new drain, but the damage sustained by the plaintiff in the enjoyment of his use of the property and then only during the period while the consequence of the wrongful act continue.

If the stoppage by the defendant was a wrongful act, and it must be so to entitle the plaintiff to recover, it will not be assumed that the stoppage will continue and be a permanent condition and so allow a recovery once for all and necessitate the building of a new sewer.

The damages are such as accrue to the owner in his enjoyment of the property down to the commencement of the suit or until the wrongful act ceases. Miller v. Rambo, 37 Vroom 195; Lewis v. Pennsylvania Railroad Co., 47 Id. 220. This rule excludes evidence of the cost of a new drain.

The judgment will be reversed and a venire de novo awarded.

Harrison v. Clarke.

78 V. J.L.

HENRY HARRISON v. FREDERICK H. CLARKE.

Submitted March 19. 1909-Decided June 7, 1909.

1. The general rule is that for a breach of a contract nominal dam

ages only can be recovered unless there is proof of substantial

damages which cannot be inferred from the breach alone. 2. Where a defendant has prevented the performance of a contract

by his fault the measure of damages generally is, for the work performed, such a proportion of the entire price as the fair cost of that work bears to the fair cost of the whole work, and for the work not performed such profit as would have been realized

by its performance. 3. In such a suit the amount of recovery must be regulated by the

contract price, although circumstances may exist which make it impracticable to ascertain what sum would be due at the contract price as in case the work done was in such an unfinished state as to be inca pable of measurement, in which event the recovery may be without reference to the contract rate. as upon a quantum

meruit. 4. A plaintiff should not be awarded a recovery of the whole contract

price under a contract not performed or only partially performed without proof to show his actual loss.

On appeal from the First District Court of Newark.

Before Justices GARRISON, BERGEN and VOORHEES.

For the plaintiff, Edwin G. Adams.

For the defendant, Woodruff & Stevens.

The opinion of the court was delivered by

VOORHEES, J. This is an appeal from the First District Court of Newark, in which judgment was rendered, after trial before the court without a jury, in favor of the plaintiff for $300.

The action was brought to recover upon a contract contained in certain correspondence whereby the plaintiff offered in a letter to paint two portraits of the defendant's parents to the entire satisfaction of the defendant as to likeness and

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quality, pictures to be delivered within a reasonable time. This was confirmed by letter written to the plaintiff by the defendant on the same day, to wit, May 28th, 1908, and the plaintiff was directed to proceed.

The proof was that the plaintiff, after a sitting by defendant's parents and the taking of photographs, during which the sister of the defendant was present, received a letter from the defendant reading, “Your proposition to cancel your contract to produce in oil portraits of my father and mother is accepted without recourse," to which the plaintiff replied that he was not aware of any proposed cancellation of the contract, and that if the defendant desired to cancel it the plaintiff supposed that he would at least offer to settle for the work already done. Thereafter there was some correspondence between the parties, in which the plaintiff was informed that there would be no more sittings at present as there was dissatisfaction with the manner in which the plaintiff was conducting the matter.

The court found as a matter of fact that the contract had never been rescinded; that the portraits had progressed to some extent. The plaintiff stated that the expense was "inestimable," no cash expense to speak of, the cost of the actual paint and canvas being very little, the most was in skill and labor, and that if the plaintiff had been permitted to fulfill his contract there would have been profit. The court rendered judgment for the entire contract price, $300.

The insistment of the defendant is that the measure of damages in cases of this type isfirst, actual reasonable expense in preparing to perform the contract; second, if the work is partly performed before the breach the actual reasonable value of the work done, and third, the actual pecuniary loss of profit, if any; and further argues that the plaintiff must prove these or fail in recovering actual damages and be confined to nominal damages alone.

The general rule is that for the breach of a contract nominal damages only can be recovered unless there is proof of substantial damages, which cannot be inferred from the breach alone.

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