120 F. 61 | 7th Cir. | 1903
after making the foregoing statement, delivered the opinion of the court.
Lenhart paid for and received a binding contract to be carried 5,000 miles if he complied with the conditions on his part. By
Benhart paid for and presented a legal ticket. To the proposition that he could not stand upon his rights, but was compelled, for the sake of saving the company from the consequences of its threatened breach of contract, to pay his fare again in cash, if he had it, and then sue for its recovery, we do not yield our assent. After a breach of contract has been committed, the injured party is not allowed to aggravate his damages, and is required to use reasonable diligence to minimize them. But beforehand one is not forced to abandon his legaL right under a contract, and waive the damages that may arise from its breach, in order to induce his adversary not to proceed as he wrongfully claims is his right.
Benhart was permitted, over the company’s objection, to detail occurrences between him and the ticket agent at Gibsonberg after the train from which he had been ejected had departed. Benhart presented his mileage book to the agent and demanded an exchange
It was also prejudicial error to permit Lenhart to testify, over the company’s objection, to the oral negotiations between himself and the officers of the company looking to a settlement. The ruling is sought to be upheld on the ground that the evidence tended to sustain an allegation in the declaration that the company, after full notice of the conductor’s intentionally malicious acts, ratified and adopted them. But there was no evidence that the conductor acted maliciously. Lenhart himself testified that he had no reason to believe that the conductor was not acting in good faith. For ydiat the conductor did without actual malice, and within the scope of his employment, the company was liable without notice, and subject to an action without demand. Along the same line Lenhart was permitted to introduce in evidence a series of letters between himself and officers of the company on the matter of a compromise. If this were the only error assigned, it might be doubtful, on account of the uncertainty of the record with respect to the company’s objections and exceptions thereto, whether the judgment should be reversed.
Further error .was committed in allowing Lenhart to give hearsay in regard to losing a sale at Toledo.
The judgment is reversed, with the direction to order a new trial..