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the money and have the benefit of the clause rate of $1,500 per month on the first section, for a release, contained in the mortgage.

$600 per month on the second section, and $650 This is not a new question in my mind. per month on the third section, which sum was

stipulated to be the true value of the use of the I have had occasion to consider it hereto-land to the board of freeholders and the true fore, and while there is no reported case that damages it would sustain by such delay, which I know of where the question has been dis- the board was authorized to retain out of any cussed or decided in this state, without any Held, that the damages provided for were liqui

moneys due or to become due to the contractor. authority to the contrary, I think it is the dated damages, and not a penalty. duty of the court to take the language of the [Ed. Note.-For other cases, see Damages. covenant precisely as it reads.

Cent. Dig. $$ 157–163; Dec. Dig. $ 78.*] There is nothing in the mortgage which in- 2. CONTRACTS ($ 300*)-PERFORMANCE-DEdicates that that covenant was to be opera

LAY-NOTICE.

Where three contracts were entered into tive only while the mortgage remained out between defendant board of freeholders of a standing and not due. The language is gen-county and a contractor for the construction of eral, and in my judgment creates an absolute, a viaduct, and each provided that the board or permanent right, and practically has the ef- its engineer should designate the day and place fect of distributing the mortgage through commence work, and that the contractor should

or places when and where the contractor should the tract, very much as if a separate mort- complete the same within 18 months thereafter gage was given on every 2,500 square feet. or be subject to specified deductions for delay as Of course that is not an accurate statement, to a notice from the board or its engineer,

liquidated damages, the contractor was entitled because, under the terms of this covenant, a plainly stating when the contract term would man might have 3,500 square feet, and, by begin to run against him as to each section of tendering the right amount, would be en- the work, and, no such notice having been givtitled to his release.

en, he was under no liability for delay. While the decree will give the complainants Cent. Dig. $1372–1381; Dec. Dig. $ 300.*]

[Ed. Note.--For other cases, see Contracts, releases upon their payment of the amount, according to the scale fixed by the mortgage, Consolidated actions by the McClintic Marit is very clear that they are not entitled to shall Construction Company, William B. Walany costs. They have not proved that they do, and Edmund B. Vanderbilt and others made any tender.

against the Board of Chosen Freeholders of [2] If this is to be regarded as a bill to re- Hudson County and others. Judgment for deem, then, under the old English rule, costs defendants. have to be paid by the complainant, not by

Cortlandt and Wayne Parker, for comthe defendant. But that rule grew out of a plainant McClintic Marshall Const. Co. Ranstate of affairs which does not exist, in my dolph Perkins, of Jersey City, and Frank M. judgment, in this country, and I do not think Patterson, of New York City, for complainant the American courts have enforced ; it

William B. Waldo and his trustee. Thomas has not been declared to be a rule of practice G. Haight and James J. Murphy, both of in New Jersey. Moreover, this bill is more Jersey City, for defendant Board of Chosen in the nature of a bill for the specific per- Freeholders of Hudson County. Joseph S. formance of the covenant contained in the

Parry, of Hoboken, for Edmund B. Vanderbilt mortgage.

and Henry H. Vanderbilt, executors of the esIn my judgment the complainant is not entitled to any costs, and, if the defendant had tate of Jacob Vanderbilt, deceased. Joseph F. not come in with an answer denying the Autenrieth, of Jersey City, for Robert w. right of the complainant to a release, I think Hunt Co. Theodore Rurode, of Jersey City, the decree should award costs to the defend- for Mack Mfg. Co. Hudspeth, Rysdyk & ant; but, inasmuch as the defendant filed Garrison, of Jersey City, for Citizens' Nat. an answer denying the right of the complain. Bank of Toranda and Mechanics' Bank of

Groton. ants to any release at all, the decree will not award the defendant any costs. There will be no costs allowed to either party.

LEWIS, V. C. These actions have been consolidated. They were brought under the

"act to secure the payment of laborers, me(83 N. J. Eq. 639)

chanics, merchants, traders and persons emMCCLINTIC MARSHALL CONST. co. v: ployed upon or furnishing materials toward

BOARD OF CHOSEN FREEHOLDERS the performing of any work in public imOF HUDSON COUNTY et al. WALDO v.

provements in cities, towns, townships and SAME. VANDERBILT et al. V. SAME.

other municipalities in this state," approved (Court of Chancery of New Jersey. Sept. 8, March 30, 1892, and by the decision in the 1914.)

Court of Errors and Appeals in this state in 1. DAMAGES (8 78*) BREACH OF CONSTRUC

TION CONTRACT-DELAY-LIQUIDATED DAM- the case of “Delafield Construction Co. v. AGES OR PENALTY.

James R. Sayre, Jr., et al., 60 N. J. Law, 449, A contract for the construction of a steel 38 Atl. 666,” such actions must be brought and concrete viaduct provided that the contract in the Court of Chancery. tor should pay the board of freeholders of the county for delay in completing the work, if any,

By stipulation of counsel, the question of beyond the time fixed for completion at the I damages has been submitted to this court:

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep r Indexes

91 A,-56

counsel of the respective parties having greater or less amounts or quantities than those reached an agreement among themselves in mentioned and set forth in the engineer's regard to the other questions involved in the estimate, then the said time will be increased

or diminished as much as the engineer shall suits.

deem just and reasonable and fairly proportionThe suits are brought for the purpose of ate to the amount of said increase or diminuobtaining money alleged to be due to the va- tion.” rious complainants for work done and ma It appears that the contractor, which was terials furnished in the construction of a then the Owego Bridge Company, was ordermunicipal improvement, known as the “Four- ed to begin work on September 19, 1907, at teenth street viaduct.” This structure was the intersection of the West Shore Railroad erected under three separate contracts, which and Fourteenth street, Hoboken. The comwere entered into, between the Owego Bridge munication containing this order is dated Company, a corporation, and the board of September 5, 1907, and is signed by the enchosen freeholders of the county of Hudson, gineer. This communication was acknowlin June, 1907. For the purpose of erection, edged on September 6, 1907, by the Owego the viaduct was divided into three sections, Bridge Company. The place which was desand a separate contract was entered into for ignated to begin the work was on section 1. each section. The viaduct is built in the On September 27, 1907, the Owego Bridge shape of the letter "Y," the first section ex- Company wrote to the engineer, as follows: tending from Willow avenue, Hoboken, to

We find that the board of freeholders have the point where the two branches of the “Y” of the Fourteenth street viaduct, in Hoboken,

not sccured any property whatever on the line separate; the second section is the projec- so we can commence the substructure work to tion on the left; and the third section is the any advantage, being confined to the street projection on the right. The contracts were entirely. This, as you know, is a great disad

vantage to us, and will make us extra expense subsequently assigned by the Owego Bridge in doing this work. We, therefore, want to give Company to the Syracuse Bridge Company, you notice that all this will be taken into conone of the defendants in these actions, this sideration as to the time that we commence the being done with the consent of the board of time that we lose in any delay caused by our

contract. We will want to be allowed all extra freeholders, and the Syracuse Bridge Com- not having the entire right of way and proppany took upon itself the fulfillment of all erty so we can work to an advantage.” the duties and obligations contained in the On December 31st the engineer wrote: original contract. The complainants and the "Mr. A. H. Mallery, Owego Bridge Company: other defendants are subcontractors. The In reply to your question for the extension of McClintic Marshall Construction Company 1, 2 and 3; and specifications for the Fourteenth

time for the three contracts known as sections had the subcontract for the steel work; Wil- street, Hoboken, viaduct, I am advised by our liam B. Waldo had the subcontract for the counsellor,. Mr. John Griffin, that this work concrete, paving, excavation, etc., and the is not officially commenced until all the land is other parties various other works. The first the first section will be secured about the 15th

secured on each of the sections. The land for and second sections were completed on June of February, 1908, and the eighteen months 1, 1912, and the third section on November specified in your contract should commence on 7, 1912.

that date, if the land is secured. At present

writing we cannot even give an idea when all The county seeks to deduct, from the mon- the land will be secured for the other sections. eys which would otherwise be due, damages We will most likely secure the Holland propfor delay in completion, which is resisted by erty next month, which will give you sufficient the other parties to the suit.

area to secure crushed stone for foundations

and permit the erection of the steel work." Each of the contracts provides (paragraph

The last piece of property on the right of D, p. 54, of printed book) :

“That the contractor shall commence work way of section 1 was acquired on September on such day and at such place or places as the 30, 1907, but the owner was not actually board of chosen freeholders or the engineer ejected from the property until November 1, may designate, and progress therewith so as to 1908. The last piece was acquired on section complete the work in accordance with this 2 from the owner on June 25, 1909, and on agreement, on or before the expiration of one year and six months after being directed to the third section the last piece was acquired begin work," etc.

on July 3, 1908. Work was started on the The contract further provides (same sec- first section in the latter part of October, tion) as follows:

1907. The board of freeholders contend “And in the computation of said time (ex- that the contractor was verbally notified to pressed in days or parts of days) during which begin work on the second section on April 1, the work, or any part or section thereof, has 1908, and it will be noticed that this alleged been delayed in consequence of the condition of the weather, or by any act or omission of notification was before all the land on that the parties of the first part (the board of free section had been acquired. The board of holders), or strikes beyond the control of the freeholders also contend that work on the party of the second part (the contractor) where-third section began in September, 1908. by the receipt of material is delayed (all of which shall be determined by the engineer,

The contracts provide (clause E, p. 55, who shall certify the same in writing), and also printed form): the time during which the prosecution of the "That the contractor shall pay the board for whole work is suspended by the engineer, shall delay in the completion of the said work, if any, be excluded. But if the performance of the beyond the time fixed for completion (unless contract shall require work or materials in the same be extended by a proper authority,

or permissible under this contract) at the rate ( erwards the engineer clearly countermanded of (different amounts as to each section, as that order, according to my view, by his letwill be hereinafter set forth) per month, which said sum it is hereby stipulated and agreed is ter to Mr. A. H. Mallery on December 31st, the true value of the use of said land to the supra, and thereafter my finding is that the board and the true damages it will sustain by contractor did not receive any sufficient nosuch delay, which said sum the said board is tice that would bind him to pay the liquiauthorized and empowered to retain out of any, dated damages, and the same is true as to

due to On the first section the damages were fixed sections 2 and 3, so far as the lack of prop

On the first section the damages were fixed er notice sufficient to bind the contractor to at the sum of $1,500 per month, on the sec

pay liquidated damages is concerned. ond section, $600 per month, and on the third

In the case of Hoey V. Jarman, 39 N. J. section, $650 per month.

Law, 526, I find the rule there stated to be Counsel for the various claimants have that, where there is ambiguity or obscurity raised two questions regarding the right of which the other parts of the instrument do the county to claim allowance for delays: not explain, it is to be construed against the First. That the moneys specified in the con- party giving the contract. tracts to be paid by the contractor for de

As I have already found, I do not feel lays are penalties and not liquidated dam- that liquidated damages should be allowed,

Second. That the county itself caused and I do not think that there has been any delay to the contractor in the prosecution of sufficient evidence produced from which I the work, and is therefore not entitled to could draw any conclusion with respect to avail itself of the right to claim the damages the allowance of compensatory damages. which the contract provides is payable to it The evidence convinces me that the entire for delays.

course of conduct and dealings between the Of course the county board will be held to board and the contractor was such as to a strict performance of the contracts; that evince an acquiescence on the part of the is, it must perform all the conditions which board in the length of time actually taken to are requisite for it to perform before the con- complete the work. tractor can be held liable for liquidated damages. Outside of the question of liquidated damages, however, compensatory damages

(245 Pa. 453) would be allowed if there were unreasonable NIRDLINGER V. AMERICAN DISTRICT delay in the prosecution of the work.

TELEGRAPH CO. [1] There is no doubt in my mind that the

(Supreme Court of Pennsylvania. May 22, damages provided for in the contract are,

1914.) under the cases in this state, liquidated dam-1. NEGLIGENCE ($ 136*)—PRIMA FACIE CASEages. See Monmouth Park Association v. ACTION FOR LOSS FROM THEFT. Wallis Iron Works, 55 N. J. Law, 132, 26 In an action for the loss of goods by Atl. 140, 19 L. R. A. 456, 39 Am. St. Rep. theft after an employé of the defendant com626; Robinson v. Centenary Fund, 68 N. J. pany had negligently failed to reset the elec

tric burglar alarm, installed by defendant on Law, 723, 54 Atl. 416; Moore v. Durnam, 63 plaintiff's premises, evidence held sufficient to N. J. Eq. 96, 51 Atl. 449; Brown V. Nor- entitle plaintiff to go to the jury on the ques. cross, 59 N. J. Eq. 427, 45 Atl. 605; Gussow tion of defendant's negligent failure of duty. v. Beineson, 76 N. J. Law, 209, 68 Atl. 907;

[Ed. Note. For other cases, see Negligence, Jersey City v. Flynn, 74 'N. J. Eq. 104, 70 Cent. Dig. $$_277-353; Dec. 'Dig. § 136.*] Atl. 497, affirmed 76 N. J. Eq. 607, 76 Atl. 3 ; 2. NEGLIGENCE ($ 56*)—"PROXIMATE CAUSE." Tilton v. McLaughlan, 83 N. J. Law, 107, 84

Where an act of negligence is so linked to Atl. 1044; Van Buskirk v. Board of Educa- succeeding facts that all are one continuously

operating succession of events, in which the tion, 78 N. J. Law, 650, 75 Atl. 909.

first is so naturally linked to the last as to be [2] Under the evidence, however, I do not its cause, "proximate cause" is established; feel that liquidated damages could be al- but where the chain is so broken that the lowed; that it would be inequitable. There is not the proximate consequence of the pri

events and facts become independent, the result were three contracts, and each one contained mary cause. the clause that the board of chosen free [Ed. Note. For other cases, see Negligence, holders or the engineer were to designate the Cent. Dig. SS 69, 70; Dec. Dig. $ 56.* day and the place or places when and where For other definitions, see Words and Phrases, the work was to commence. I shall find vol. 6, pp. 5758-5769; vol. 8, p. 7771.] that the contractor was entitled to three dis- 3. NEGLIGENCE (S 136*)—PROXIMATE CAUSEtinct notices, one for each of the sections, QUESTION FOR COURT. clearly notifying him when the 18 months there was no conflict in the evidence whether

Where, in an action for loss by theft, began to run against him in each case. I

the negligence of defendant's employé in failthink he was clearly entitled to that, and, if ing to reset a burglar alarm, installed by dehe was left in doubt about such a vital mat- fendant on plaintiff's premises, and in deter, he should have the benefit of it. He was fendant's charge, was the proximate cause of ter, he should have the benefit of it. He was the loss, the question of proximate cause was notified by the engineer (who had the neces- for the court and not for the jury. sary power under the contract to give such

[Ed. Note.–For other cases, see Negligence, notice) to commence work on section 1. Aft- Cent. Dig. $8 277–353; Dec. Dig. $ 136.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

4. NEGLIGENCE (8 62*)-PROXIMATE CAUSE. entrance was effected therein through a raisWhere a company undertook to equip plained window, and various valuable articles,

, tect it from burglarious entry by the dispatch amounting in the aggregate to a very considof guards thereto when warned by automatic erable sum, were stolen. The record shows signals, and where the house was burglarized an express admission by the defendant that while the burglar alarm was not set, due to the on this particular occasion no agent was disnegligence of defendant's employé, the question whether the loss would not have occur patched to the invaded premises, and no red but for such negligence depended on sev- alarm signal was received at defendant's eral contingencies; and hence the proximate office. The negligence charged in the statecause of the loss was not such negligence, but ment of claim was failure on part of the dewas the felonious entry of the building.

[Ed. Note.-For other cases, see Negligence, fendant to properly set and adjust, and keep Cent. Dig. 88 76–79; Dec. Dig. § 62.*]

properly set and adjusted, the alarm system 5. ACTION (27*)—NATURE AND FORM-AC- which it had installed, and failure to promptTION ON CONTRACT—INCIDENTS.

ly dispatch an officer for the protection of Though an action may be in form as for the premises. The evidence submitted by a tort, yet if the subject of it be based on the plaintiff was to the effect that during contract, the action will be attended by all periods when the dwelling house was not octhe incidents of an action ex contractu.

[Ed. Note. For other cases, see Action, Cent. cupied, it was his custom, if not a duty reDig. SS 160-195; Dec. Dig. $ 27.*]

quired of him, to leave the key of the house 6. DAMAGES ( 18*)—BREACH OF CONTRACT with the defendant company, so that, if occa-PROXIMATE RESULT.

sion required, easy entrance could be obWhere a company which has installed bur- tained; that during the morning of the day glar alarms on plaintiff's premises breaches its contract to care for the premises in plain- preceding the burglary plaintiff, desiring to tiff's absence, it is liable for such damages as get some articles from the house, requested proximately result from such breach, though the agent of the company to open the house some damages result to the property during for that purpose, and upon his withdrawal plaintiff's absence otherwise than proximately therefrom to restore the electrical connection through such breach.

[Ed._Note.-For_other cases, see Damages, which would be interrupted by the opening of Cent. Dig. § 37; Dec. Dig. § 18.*]

the house; that the agent accompanied plainAppeal from Court of Common Pleas, Phil- tiff, to the house, opened it, and then with

drew, requesting plaintiff to close the door adelphia County. Action by Samuel F. Nirdlinger, for him from the house, and promising to shortly

after he had obtained what he wanted self and for the use of the Frankfort Marine, return and reset the alarm; that plaintiff Accident & Plate Glass Insurance Company on withdrawing from the house carefully of Frankfort-On-Main, Germany, against the American District Telegraph Company, a cor- he had been given entrance;

closed and secured the door through which

that defendporation. From judgment for plaintiff, de

ant's agent, if he returned at all to lock fendant appeals. Reversed.

the house, neglected to reset the alarm beSee, also. 240 Pa. 571, 88 Atl. 6. Argued before FELL, C. J., and BROWN, to show that the electrical apparatus had

fore finally leaving it. Plaintiff's effort was MESTREZAT, POTTER, ELKIN, STEW

given no alarm when the burglarious entry ART, and MOSCHZISKER, JJ.

was being made because of failure on part of Horace Michener Schell and Frank R. defendant's agent to reset it. This became Shattuck, both of Philadelphia, for appel- the main fact in dispute. It would serve no lant. Arthur S. Arnold, of Philadelphia, for purpose to review the evidence on one side appellee.

and the other touching this disputed point.

[1] It cannot be questioned that the eviSTEWART, J. The defendant engaged dence by plaintiff was quite sufficient to with the plaintiff for an annual money con- warrant an inference of negligence on part sideration to install and maintain in the lat. of the defendant, either in failing to have the ter's dwelling house, on North Broad street apparatus reset, or if it had been reset, in in the city of Philadelphia, an electrical sig. failing to send a representative to interrupt nal apparatus known as burglar alarm, so the burglary. The electrical apparatus was constructed that it would automatically trans- | in the exclusive management of the defendinit to the defendant's office a notice by ant; all the elements of the occurrence, bar. signal of any invasion or disturbance of door ring the burglary itself, were within its conor window in the house, and that upon re-trol, and the result was so far out of the ceipt of such signal the defendant would at usual course that no fair inference that it once dispatch an agent to the invaded prem- would have been produced by any other cause ises. So far as the evidence discloses this than defendant's negligence could arise. Zahwas the full extent of the defendant's under- niser v. Torpedo Co., 190 Pa. 350, 42 Atl. 707. taking. During the early morning of 26th It was for the defendant to overcome the October, 1910, while this relation between prima facie case so made out. The case as plaintiff and defendant continued, and the tried turned on this question of fact: Did plaintiff's house was unoccupied by plaintiff the defendant's agent on the afternoon of or members of his household, a burglarious / 25th October, when he reclosed the house, re

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

store the current? If he did, and for some, mate cause, or was the negligence but a reunknown reason the apparatus failed to give mote, as distinguished from the proximate, an alarm when the house was broken into, cause? Where the original cause, that is, the however the defendant might otherwise be negligence, is by continuous operation so linkresponsible, it could not be charged, because ed to each succeeding fact as that all may be of this fact, without more, with negligence; said to be one continuous operating succesif, however, he did not restore the current, it sion of events, in which the first becomes was negligent failure of duty for which the naturally linked to the last, and to be its defendant would be responsible. The ques-cause, and thus within the probable foresight tion with suitable instructions as to the law of him whose negligence is charged, then the was submitted to the jury, and the finding proximate cause is established. Where, howwas for the plaintiff.

ever, the chain is so broken that the events [2] With defendant's negligence establish- and facts become independent of each other, ed, did a right of action for the tort result to then the result cannot be said to be the natthe plaintiff? The instruction of the learned ural and probable consequence of the pritrial judge on this point was as follows: mary cause. Penna. R. R. v. Hope, 80 Pa.

“Even although you conclude that the alarm 373, 21 Am. Rep. 100. Let us apply this test was not put on, unless you find that the fails to the facts of the present case. The fact next ure to put it on was negligence, and you are convinced by the evidence that the failure to set preceding the fact of plaintiff's loss, and the the alarm was the proximate cause of the loss one fact to which the loss must be referred as of the articles that it is claimed were stolen, its nearest antecedent is the felonious enyour verdict must be for defendant. The proximate cause of an event is that which in a nat. try of plaintiff's house. How was the defendural and continuous sequence, unbroken by any ant’s negligence linked, as an operating cause, new cause, produces the event, The conse- to this fact or event? Certain it is that it quence must be the natural and probable consequence, distinguished from the possible conse

did not produce it. The law regards those qu:ences. The natural and proþable consequenc- consequences as remote, and therefore not aces are those which human foresight can foresee, tionable, which are produced by the intervenbecause they happen so frequently that they tion of human agency, or the voluntary act may be expected to happen again. The possible consequences are those which happen so infre- of a person over whom the defendant has no quently that they are not expected to happen control, and his act no influence. Sedgwick again. Unless the proximate cause of the rob- on Damages, $ 126. We find, then, a proxibery was the failure to set the alarm, your ver- mate cause of the loss here in the felonious dict must be for the defendant. If you are convinced that the robbery was the natural and entry of the dwelling, but back of that nothprobable consequence that would be expected to ing, at least nothing that involves this defollow a. failure to set the alarm, and that the fendant. It is argued, however, that defendalarm was not set, you will be justified in find-ant's negligence was the proximate cause of ing a verdict in favor of the plaintiff." [3] This was a correct statement of the nal would have announced to the defendant

the loss because, except for it, the alarm siglaw; and we are now confronted by a find the fact of the invasion, and the company ing by the jury that plaintiff's loss was the thereupon would have dispatched a reprenatural and probable consequence of defendant's failure to reset the electrical alarm. It sentative to the invaded premises, and thus is to be observed that on this particular question. Whether that would have been the re

prevented the loss. But this is pure speculation of proximate cause there was no conflict sult had the apparatus been in working order of testimony whatever, and the fact of an

can never be known. It would depend upon intervening agency was manifest. A submission of the question, therefore, was unwar, which would have been sufficient to disap

contingencies without number, any one of ranted; it was clearly within the province

point it. Certainly there is nothing in the and duty of the court to decide it. Now that it is raised on the appeal by the second as

case from which a legal inference could be de

rived that the loss would have been averted signment of error, it is properly for our con- had the electrical alarm been in order. Adsideration. Hoag v. Railroad Co., 85 Pa. 293. had the electrical alarm been in order. Ad

judicated cases of this character are not fre27 Am. Rep. 653.

quent. But one more nearly parallel to this [4] Briefly stated the question is: Was the plaintiff's loss or damage the natural or that of State v. Ward, 9 Heisk. (Tenn.) 100, cit

than any to which we have been referred is probable result of defendant's negligence? That is to say, was it a consequence which ed by Mr. Sedgwick on his Treatise on Damfollowed directly from such negligence, and ages in support of his text. There the state which might or ought to have been foreseen had leased convicts to the defendant and by the defendant as likely to result from a agreed to keep a guard over them. It failed to failure on its part to reset the alarm ap- ment was burned by a fire set by one of the

keep the guard. The defendant's establishparatus? Of course, the defendant was not an insurer against loss; nevertheless, if plain-convicts, and in an action by the state for the tiff's loss is traceable to its negligent breach hire, the defendant set up his loss in recoupof a duty that it owed to the plaintiff, it is ment. Nicholson, C. J., in the opinion says: liable. The question is, Can it be so traced

"Looking to the contract, then, for the meas

ure of damages for its breach, it follows inevto the negligence established in the case as its bly that the expense of such guards as are the primary, efficient, and therefore proxi-contracted furnish the true measure of damages.

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