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NEW JERSEY SUPREME COURT.

Harrison v. Clarke.

78 N.J.L.

It was,

There was no evidence that there was any expense in the preparation to perform the contract, nor what was the reasonable value of the work done before the contract was broken, nor was there any evidence of what profit, if any, would have been made if the contract had been completed. Consequently, no loss of profit was proved.

The general rule of damages where there is a prevention of performance of a contract by the fault of the defendant, was enunciated in Kehoe v. Rutherford, 27 Vroom 23. 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.

In a suit brought upon such a contract for refusal to perform the damages for what has been done under it, as well as the profits to be earned, must be regulated by the contract price, although circumstances may exist which make it impracticable to ascertain what sum would be due at the stipulated prices, because when the work was stopped it was left in such an unfinished state as to be incapable of measurement, in which case the recovery might be as upon a quantum meruit, without reference to the contract rate. Derby v. Johnson, 21 Vt. 17. See full discussion of this subject in Sedgw. Dam. (6th ed.) 264, 265.

It may be, and probably is, true, that these circumstances are present in this case, and that the latter rule must be applied as to work performed.

But that the plaintiff, without proof to show his loss, should be awarded a recovery under a contract not performed, or only partially performed, of the same amount as he would be entitled to upon full performance, would be to permit what in K'choe v. Rutherford, supra, was rejected because “the absurdity of the result condemns the application of such a rule.” This leads to a reversal of the judgment.

Whether the general rule or its modification must be applied in this case depends upon the facts. What they are do not appear.

The judgment is reversed and a new trial ordered.

49 T'room.

Hite v. Dell.

LOCIS HITE v. WILLIAM A. DELL.

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

1. The fifty-third section of the Evidence act (Pamph. L. 1900, p.

362) and the act amendatory thoreof (Pamph. L. 1908, p. 277) apply as well to testimony taken by consent under the fiftyseventh section of the Evidence act as to depositions taken under

order of the court. 2. The power to order that the expense of depositions taken under

the act concerning evidence be made a part of the taxed bill of costs of the prevailing party under amendment of April 11th,

1908 (Pamph. L., p. 277), is a discretionary power. 3. Where an order discretionary in its character has been made by

a single justice at chambers and it appears from the terms of such order that such justice did not treat the matter as discretionary, and therefore did not exercise his discretion, such order for that rea:on will be reversed.

On motion to review order made by a single judge at chambers.

Before Justices GARRISON, BERGEN and VOORHEES.

For the plaintiff, Vreeland, King, Wilson & Lindabury.

For the defendant, Lindabury, Depue & Faulks.

The opinion of the court was delivered by

VOORHEES, J. This is an application to review an order made by a justice of this court. Application was made to him for an order directing that the expense of the examination of certain witnesses taken de bene esse by commission and under stipulation should be made a part of the defendant's taxed costs, the defendant being the prevailing party in the suit. . Some of the witnesses were examined by stipulation dated March 7th and April 220, 1908, by consent under the fifty-seventh section of the Evidence act (Pamph. L. 1900, p. 378), which expense amounted to $141.18. The examination

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of two other witnesses was made on notice and order of the court, under the provisions of said act by commissions issued in September, 1908. The order refused to allow the costs of the examinations taken by consent to be included in the bill of costs, but did allow those taken by commission to be included, and refused the allowance of the former.

Section 53 of the Evidence act originally provided that “the party requiring such examination or deposition shall be at the sole expense thereof, and shall not have any allowance for the same in the taxation of costs." This section was amended in 1908 by a supplement approved April 11th, 1908, to read as follows: “The party requiring such examination or deposition shall, in the first instance, be at the sole expense thereof, and said expense may be made a part of the taxed bill of costs of the prevailing party is so ordered by the court.” Pamphi. L. 1908, p. 277.

It is insisted, on the one hand, that this section as originally enacted and as amended can apply only to those examinations which are taken upon commission issued under an order of the court, and do not apply to testimony taken by consent pursuant to the fifty-seventh section of the Evidence act.

To say that the words "the party requiring such examination" shall apply only to those making application to the court for a commission, but not to those who seek out their adversaries and obtain their consent, would be a distinction not well taken. The party asking for the consent may be said to require the examination quite as inuch as he who manifests the requirement by an application to the court. We therefore think that the fifty-third section as it originally stood and as amended applies as well to testimony taken by consent as a deposition taken under order of the court.

But it is further claimed, on the one hand, that the power to order that the expense of the depositions be made a part of the taxed bill of costs of the prevailing party under the amendment of 1908 is not discretionary, while the other party insists that it is discretionary. That it is a discretionary power cannot be doubted, and hence, under K’ey v. Paul, 32

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Vroom 133, cannot be reviewed here. If the justice making the order had treated it as a discretionary matter and had exercised his discretion his order would have been a finality. It appears, however, from the order made that he did not treat it as discretionary, and therefore did not exercise his discretion, for the order recites that "the justice being of opinion that the expense of the examinations or depositions taken by virtue of said stipulation of March 7th, 1908, and April 22d, 1908, could not be included in the taxed bill of costs of the defendant, for the reason that no provision of law exists in that behalf.” For that reason the order under review must be reversed.

Whether the amendatory act, approved April 11th, 1908, would be retroactive so as to apply to the examination taken under the stipulation of March 7th, 1908, may well be doubted, but that objection could not apply to the examination taken pursuant to the stipulation of April 22d, 1908.

MALCOLM HUFTY V. THEODORE D. WILSON.

Argued June Term, 1909-Decided October 16, 1909.

The revision of the Practice act (Pamph. L. 1903, p. 537, § 56) re

garding the issuing of a writ of capias ad respondendum in tort actions by using in such amendment the very language used in the statute long on our books concerning its issue in contract actions (Practice act 1903, $ 57) will be construed in the same way that the provisions of the statute have been construed which relate to actions on contract.

In tort. On application to set aside order to hold to bail.

For the application, Patterson & Rhome and Edmund Wilson, attorney-general.

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The opinion of the court was delivered by

VOORHEES, J. This is an application to set aside the order of a Supreme Court commissioner that the defendant be held to bail in $10,000 in an action of tort for the alienation of the affections of plaintiff's wife.

In actions of tort the rule is that there must be an order to hold to bail by a judge or commissioner, but only upon proof by aflidavit disclosing a good cause of action and some special circumstances why the order should be made. Benson v. Bennett, 1 Dutcher 166. Actions for outrageous battery or mayhem and actions for seduction are said to be exceptions to this rule. Wert v. Strouse, 9 V room 184. Special reasons ordinarily cited are non-residence of the defendants, or facts and circumstances from which it may be inferred that the defendant may noi be in the jurisdiction to answer to a judgment when rendered.

Before the present revision of the Practice act of 1903, the statutes were practically silent upon the holding to bail in actions of tort save that an affidavit of the cause of action should be made and filed in the cause, and that nothing in that act contained should prevent a judge from ordering, as theretofore, defendant in any action to be held to special bail as the judge under all the circumstances of the case shall think proper, which sum shall be endorsed on the process. Gen. Stat., p. 2512, $ 55. Hence where the judge's order was simply endorsed upon the writ it was held good. In Wert v. Strouse, supra, Justice Scudder states that the contrary idea arose from confounding the practice pursued in actions on contract when the judge's order is distinct from the writ. In the revision of 1903 of the Practice act the above-mentioned section 55 has been incorporated in section 56, which prescribes the law for the issuance of a capias ad respondendum in actions of tort and forbids its use "except upon proof to the satisfaction of the judge of the grounds upon which bail is required and thereupon the

* judge shall make an order for bail in such sum as he shall under the circumstances of the case think proper and such sum shall be endorsed on the capias in words at length; on filing the proof

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