Lyon v. Culbertson.

the agreement by one of the parties, the other may terminate the contract and sue for and recover damages, without waiting for the expiration of the time for the fulfillment of the agreement, or offering or showing a readiness to perform his part of the contract. And in such case, the party not in default may recover all damages growing out of the breach of the precedent part of the agreement, and not to the same extent that he could, had he performed in full his part of the agreement, and the other had not performed his part.

We fail to perceive any difference in principle between the supposed cases and the one at bar. It may be that, had the declaration been counted alone for a breach of the agreement to put up margins, and appellees had proved that they had sustained damage, by having wheat on hand to deliver, or wheat actually purchased to be delivered on the contract, and on which they had sustained loss, the amount of such loss might have been recovered; but no such loss is shown.

There is another class of cases which hold that the contracting parties may fix a measure of damages which either shall pay, shall make default. But, to be legal, the sum thus agreed to be paid as liquidated damages must be reasonable, and not oppressive. If the sum thus fixed is highly penal, and unjustly oppressive, courts of justice should never enforce the payment of such exorbitant sums. Courts must treat such unjust and oppressive agreements as penalties, and refuse to enforce them.

In all penal bonds there is a positive agreement to pay the sum named, if the obligor shall fail to perform the annexed condition; and yet, all know the penalty cannot be collected, but only the actual damages sustained by the breach of the condition. If the damages proved equal the sum named in the bond, the recovery may be to that extent, but the recovery is for the damages, and not the penalty. In this case the conditions contained in the rules of the board of trade, if to be enforced as claimed, are highly penal, as is illustrated by the recovery below so much so as not to be enforced.

Another view may be taken of this contract. We have seen that, in case of a failure to put up margins as required, the party demanding them may elect to consider the contract as filled, and the settlement shall then be based on the difference between the contract price and the market price when the default is made.

Lyon v. Culbertson.

It would by no means be a forced construction, to say this contract means that, when the party elects to regard the contract as filled, if he desires to do more than to simply declare the contract at an end-if he desires to hold the other party liable for damages -he must do all things that would have been required of him in case the time for the delivery had elapsed. Had the time for delivery by one party, and payment by the other, arrived, by the terms of the contract, appellee would, it may be held, have been compelled to have tendered the wheat or warehouse receipts before they could have put appellants in default, so as to recover damages for a breach of contract. And the agreement gave the sellers the option to fix the day of delivery, and the right thereupon to demand payment, so it should be within the period limited by the contract.

If such was the effect of the terms of this contract, then appellees had the right to, and were required to offer the grain, whenever they elected to treat the time as having arrived for the fulfillment of the agreement. If they elected, on the 20th of August, to treat the time as having arrived, when they would fill the contract, they should have done so precisely as though the last day had arrived within which they could make a delivery and demand payment. With this construction, appellees were bound to offer the wheat or warehouse receipts therefor, and hence, they having failed to make such an offer, they have failed to show themselves entitled to recover.

We have examined with great care the able and exhaustive argument of appellees' counsel filed on a petition for a rehearing, but are constrained to adhere to the conclusion heretofore announced, but have modified in some respects the views heretofore expressed. For the reasons herein expressed, the judgment of the court below must be reversed and the cause remanded.

Judgment reversed.

Shugart v. Egan.

SHUGART V. EGAN.

(83 Ill. 56.)

Civil damage act-Death caused by third party.

A statute gave a wife "who shall be injured in person, property or means of support," "in consequence of the intoxication.... of any person," a right of action against the person who caused the intoxication, and made such person liable" for all damages sustained and for exemplary damages." Held, that the seller of intoxicating liquor to a husband who becomes intoxicated thereby, and in consequence of his abusive language is killed by a third party, is not liable in damages to the wife for the death. (See note, p. 362.)

A

CTION for damages under civil damage act. The opinion states the facts.

The statute under which the action was brought is as follows:

66

Rev. Stat., § 9. Every husband, wife, child, parent, guardian, employer, or other person who shall be injured in person, or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person, or persons, who shall, by selling, or giving, intoxicating liquors, have caused the intoxication, in whole, or in part, of such person, or persons; and any person owning, renting, leasing, or permitting the occupation of any building, or premises, and having knowledge that intoxicating liquors are to be sold therein, or who, having leased the same for other purposes, shall knowingly permit therein the sale of any intoxicating liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person, or persons, selling or giving intoxicating liquors aforesaid, for all damages sustained, and for exemplary damages; and a married woman shall have the same right to bring suits, and to control the same and the amount recovered, as a feme sole."

*See Schmidt v. Mitchell, post.

Shugart v. Egan.

John V. Eustace, for appellant.

B. H. Trusdel!, for appellee.

SCHOLFIELD, J. Since a rehearing was ordered in the present case, we have again considered the objections urged to the rulings of the court below, and have come to a different conclusion from that announced in the opinion first held, upon the question of damages resulting from the death of the plaintiff's husband.

It is claimed that the plaintiff's husband, while in a state of intoxication caused by liquors obtained by him from the defendant Friel, insulted or menaced one McGraw, who thereupon stabbed him, inflicting a wound whereof he died shortly afterward. The court below, in giving and refusing instructions, ruled that this entitled the plaintiff to recover of the defendants compensatory damages for the loss of her husband's life, as well as for other damages resulting, proximately, from the obtaining of liquors by him from Friel.

The statute authorizes a recovery by the plaintiff from the defendant for "all damages sustained" in consequence of the act of Friel in letting her husband have liquor, and "also for exemplary damages;" and the question to be determined is, whether damages resulting from the loss of his life, under the circumstances, are within the contemplation of the statute.

The words, "damages sustained," should be construed with reference to their known legal signification, i. e., to mean such damages as, in legal contemplation, are to be regarded as the result of the wrongful act.

It by no means follows, merely because a person, while in a state of intoxication, receives an injury, that it can be said, in a legal sense, the act of letting the persons have the liquor inducing the intoxication, caused the injury.

It was said by Lord BACON, "It were infinite for the law to consider the cause of causes, and their impulsion one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree." Bacon's Maxims, Reg. 1; Broom's Legal Maxims, 165.

The rule is of frequent recognition in the decisions of this court, although there has, sometimes, been difficulty in satisfactorily determining whether particular acts were to be regarded as the imme

Shugart v. Egan.

diate or the remote cause. In Fent et al. v. The T., P. & W. R'y Co., 59 Ill. 351, it was said, quoting from 2 Pars. on Cont. (1st ed.) p. 456,"Every defendant shall be held liable for all those consequences which might have been foreseen and expected as the result of his conduct, but not for those which he could not have foreseen, and was, therefore, under no moral obligation to take into consideration." This would seem to be equally as applicable to actions founded on torts as to those accruing upon contracts. Addison, in his work on Torts, under the head of "Special and Extraordinary Damages," says: "All damages which ordinarily and in the natural course of things might fairly be expected to result, and have resulted, from the commission of the wrongful act, are recoverable, provided they are claimed in the declaration." It has also been held, that the intervention of the independent act of a third person, between the wrong complained of and the injury sustained, which was the direct or immediate cause of the injury, breaks the causal connection; and, consequently, there can, in such case, be no recovery except as against the person whose immediate agency produced the injury. See Wharton on Negligence, § 134, and authorities there cited.

Here, the death not resulting from intoxication or from any disease induced or aggravated by the use of liquor, but solely from the direct and willful act of McGraw, we have a case clearly within this principle.

All that can be certainly said of the act of Friel in letting plaintiff's husband have liquor, is, that act caused or contributed to his intoxication; his intoxication may have been the cause of his insulting or menacing McGraw, and McGraw's act of stabbing him may have been because of this insult or menace; and because of this stabbing he died. But it is not entirely certain he would not have insulted or menaced McGraw if he had not had any liquor, nor is it entirely certain that McGraw stabbed him in consequence of such menace or insult, because elements affecting the mental organizations and dispositions of the parties may have existed in this instance, as they have in thousands of others of like character, inducing the tragic result, entirely independent of the influence the liquor had upon the deceased. It cannot be said that Friel should have foreseen that his letting the deceased have liquor would lead to his death or bodily harm, at the hands of McGraw, or by violence from any source, because this was an excepVOL. XXV - 4€