OJorn^U IGam i>ri|0ol HJibtary 
 
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ELEMENTS 
 
 OF 
 
 THE LAW OF DAMAGES 
 
To accompany this volume : 
 
 A COLLECTION OF CASES ON THE MEASURE 
 OF DAMAGES. By Joseph Henry Beale, Jk. 
 
ELEM£1<TS 
 
 OP 
 
 THE LAW OF DAMAGES 
 
 A HANDBOOK FOR THE USE OF STUDENTS 
 , AND PRACTITIONERS 
 
 BY 
 
 ARTHUR GEORGE SEDGWICK 
 
 SECOND EDITION 
 REVISED AND ENLARGED 
 
 BOSTON 
 
 LITTLE, BROWN, AND COMPANY 
 
 1909 
 
Copyright, 1896, 1909, 
 By Arthur G, Sedgwick. 
 
 John Wilson and Son, Cambbidqe, U.S.A. 
 
TO 
 
 F. V. BALCH 
 
PREFACE TO THE SECOND EDITION. 
 
 In the present edition I have re-examined the subject after an 
 interval of thirteen years. With the necessary development of 
 the law in such a period, and the constantly increasing volume 
 of cases, I have not been able to avoid considerably increasing 
 the text and the number of citations. The chief additions relate 
 to Mental Suffering, especially as to the bearing upon the ques- 
 tion of its allowance of the doctrine of Proximate Cause, Death 
 by Wrongful Act, Compensation and Benefits under Eminent 
 Domain Statutes, Interference with Contract and the right to 
 seek Employment, Liquidated Damages, Limitations of Lia- 
 bility, Damages in Contract on refusal to perform. Damages on 
 breach of manufacturing contracts, the rule in Smith v. BoUes, 
 Damages on breach of agreements to lend money. Damages as 
 affected by the Conflict of Laws, and Pleading and Practice. 
 
 So far as the substantive law is concerned, the course of de- 
 cision has tended to clear up many important points which 
 until recently were involved in a good deal of obscurity. Thus, 
 the cases of Dulieu v. White and Simone v. Rhode Island seem 
 at last to have placed the theory of proximate cause in actions 
 for physical injury produced by the effects of negligence upon 
 the nervous system in its true light; actions for wrongs com- 
 mitted through interference with Contract, and the right to make 
 contracts, have been placed upon a clear and intelligible basis; 
 the stumbling-blocks in the way of Uquidating damages by 
 agreement have been rendered much less formidable by the 
 doctrine of "pre-ascertainment"; the theory of damages for 
 breach of manufacturing contracts has been freed from most of 
 its perplexity. On the other hand, the obscurity overhang- 
 ing the distinction, made by courts of the highest authority, 
 between the measure of damages in actions for breach of war- 
 ranty and in actions for fraud or deceit alleged to have induced 
 
vm PREFACE TO THE SECOND EDITION 
 
 a sale has not been removed; and I may venture here to call 
 attention to what I have said about it in this edition. 
 
 The attention of the profession and the public are at length 
 being drawn to what is one of the gravest abuses at present in 
 the administration of all compensatory relief, — delays caused 
 by abuse of the right of appeal. That this abuse is primarily 
 due to legislation, and could be almost entirely done away by 
 simplification of procedure, by entrusting the regulation of its 
 details to the courts, and by the abrogation of the rule that a 
 litigant has a right to a new trial because of error in the trial 
 court which may by possibility have affected the result, al- 
 though the appellate court cannot in reason believe a new trial 
 to be in the interests of justice^ has become plain; no reform 
 of the system can be effective which does not take the matter 
 out of the hands of the legislature, so that the unending med- 
 dling of that branch of the government with procedure which has 
 produced such a monstrosity, for instance, as the New York 
 Code shall be stopped. 
 
 In a hand-book like this which surveys, for the purposes of a 
 single subject, almost the whole range of common-law actions, 
 the number of titles is necessarily very large; and I have ac- 
 cordingly considerably increased the number of these in the 
 index. 
 
 To accompany this volume Prof. J. H. Beale has prepared 
 
 a second edition of his Cases on Damages. 
 
 A. G. SEDGWICK. 
 New York, Dec. 31, 1908. 
 
PREFACE TO THE FIRST EDITION. 
 
 This book is an attempt to review the law of Damages, to 
 state its principles so far as possible in the fonn of rules, or prop- 
 ositions of law, such as a court might lay down to a jury, — 
 many of them have, in fact, been authoritatively laid down to 
 juries, — and to illustrate these by the cases from which they 
 have been drawn. It is not to be supposed that all the rules given 
 are in force everywhere. But taken altogether they are intended 
 to exhibit the Common-Law Scheme of Damages. Where serious 
 local differences exist, the difference has been stated, and its 
 cause, so far as possible, explained. 
 
 It should be added that the book is not an abridgment of 
 "Sedgwick on Damages." The whole field covered has been 
 re-examined ; indeed, the purpose of the two books will be seen 
 to be quite different. With reference to matters of antiquarian 
 or historical research, the attempt has been made to follow safe 
 guides, — such as Holmes in this country, and Pollock and 
 Maitland in England, — and to avoid advancing original 
 speculations. 
 
 Most of the leading cases will be found in Professor Beale's 
 Cases on Damages, collected to accompany this volume. 
 
 A. G. SEDGWICK. 
 
 New York, Nov. 8, 1895. 
 
TABLE OF CONTENTS. 
 
 Faqe 
 
 Preface to the Second Edition vii 
 
 Preface to the Fmai Edition ix 
 
 Table of Cases xdii 
 
 Introduction 1 
 
 PART I. 
 
 MEASURE AND PROOF OP DAMAGES. 
 Chapteb 
 
 I. Common-law Principles 13 
 
 II. Certainty 23 
 
 III. Rules of Exclusion 30 
 
 IV. Tort and Contract 37 
 
 V. Cause and Consequence 41 
 
 VI. Avoidable Consequences 73 
 
 VII. Nominal and Exemplary Damages 81 
 
 VIII. Elements of Injury 98 
 
 IX. Limitations op Injury 115 
 
 X. Value and Price 128 
 
 XI. Interest 135 
 
 PART .II. 
 
 TORT AND CONTRACT. 
 
 XII. Damages in Tort 146 
 
 XIII. Person and Family 155 
 
 XIV. Death by Wrongful Act 176 
 
 XV. Torts affecting Rights of Property and Contract . 183 
 
 XVI. Eminent Domain 215 
 
 XVII. Damages in Contract 223 
 
 XVIII. Bonds, Liquidated Damages, and Ai/tbrnative Con- 
 tracts. Limitation op Liability 232 
 
 XIX. Particular Classes of Contracts 255 
 
 xi 
 
Xll TABLE OF CONTENTS. 
 
 Chapteb Page 
 
 XX. Carriers 297 
 
 XXI. Telegraph and Telephone 315 
 
 XXII. Breach of Promise 325 
 
 XXIII. Contracts affecting Real Estate 332 
 
 XXIV. Conflict op Laws 344 
 
 PART III. 
 
 XXV. Pleading and Pbactice 340 
 
 APPENDIX 357 
 
 INDEX 359 
 
TABLE OF CASES. 
 
 Page 
 
 Abrahams v. Kidney (Mass.) 60, 174 
 
 Adams v. Fitchburg R. R. Co. (Vt.) 348 
 
 V. Smith (111.) 107 
 
 Adams Ex. Co. v. Egbert (Pa.) 133 
 
 ^tna Ins. Co. v. Johnson (Ky.) 285 
 
 Agius V. Great Western Colliery Co. (Eng.) 69, 306 
 
 Ainslie v. Wilson (N. Y.) 281 
 
 Alabama G. S. R. Co. v. Roberts (Tenn.) 355 
 
 Alexander v. Blodgett (Vt.) 157 
 
 V. Jenkins (Eng.) 164, 165 
 
 Allegheny v. Zimmerman (Pa.) 54 
 
 Allen V. Fox (N. Y.) 193 
 
 V. Jarvis (Conn.) 266 
 
 V. Suydam (N. Y.) 294 
 
 V. Truesdell (Mass.) 67 
 
 Allison V. Chandler (Mich.) 25 
 
 Allsop V. Allsop (Eng.) 107 
 
 American Cent. Ins. Co. v. McLanathan (Kan.) 252 
 
 American L. & Health Ins. Co. v. Robertshaw (Pa.) 291 
 
 American Nat. Bank v. Morey (Ky.) 109 
 
 Anderson v. Miller (Tenn.) 125 
 
 Andrews v. Durant (N. Y.) 144 
 
 Anon. (N. Y.) 43 
 
 Appleton V. Marx (N. Y.) 333 
 
 Armfield v. Maish (Miss.) 74 
 
 Armory v. Delamirie (Eng.) ^ 123 
 
 Arnold v. Suffolk Bank (N. Y.) 263 
 
 Ashley v. Harrison (Eng.) 54 
 
 Atkinson v. Doherty (Mch.) 169 
 
 Atlanta Nat. Bank v. Davis (Ga.) 351 
 
 Attersoll v. Stevens (Eng.) 122 
 
 Atwood V. Walker (Mass.) 345 
 
 Aurora City v. West (U. S.) 145 
 
 Austin V. Augusta T. R. R. Co. (Ga.) 219 
 
 V. Wilson (Mass.) 89 
 
 Averett v. Kendiick (Ga.) 210 
 
 Ayres v. Chicago & N. W. Ry. Co. (Wis.) 308 
 
 Bach v. Levy (N. Y.) 270 
 
 Bacon v. Cropsey (N. Y.) 195 
 
 Badger D. Titcomb (Mass.) 119 
 
 Bagley v. Peddie (N. Y.) 244 
 
 V. Smith (N. Y.) 25 
 
 Bailey v. Agawam Nat. Bank (Mass.) 339 
 
 Baily v. Merrell (Eng.) 205 
 
Xiv TABLE OP CASES. 
 
 Page 
 
 Bain v. Fothergill (Eng.) 342 
 
 Baker «. Bolton (Eng.) , :„ }IS 
 
 V. Drake (N. Y.) 20, 149, 188 
 
 V. Martin (N. Y.) 283 
 
 Baldwin v. United States T. Co. (N. Y.) 321 
 
 Ballentine v. Robinson (Pa.) 264 
 
 Ballou V. Billings (Mass.) 267 
 
 V. Famum (Mass.) 98, 107 
 
 Baltimore & O. R.R. Co. v. Can- (Md.) 148 
 
 V. Wightman (Va.) 180 
 
 Baltimore & P. R. R. Co. v. Fifth Baptist Church (U. 8.) . 100, 202, 220 
 
 Barnard v. Poor (Mass.) ". 87 
 
 Barnes v. Jones (Cal.) 88 
 
 Bamimi v. Vandusen (Conn.) 61 
 
 Barr v. Moore (Pa.) 89 
 
 Barrick v. Schifferdecker (N. Y.) 198 
 
 Bariy v. Cavanagh (Mass.) 266 
 
 Bartlett v. Kidder (Mass.) 124 
 
 V. W. U. Tel. Co. (Me.) 318 
 
 Bartley v. Richtmyer (N. Y.) 174 
 
 Battishill v. Reed (Eng.) 120 
 
 Baxendale v. London C. & D. Ry. Co. (Eng.) 306 
 
 Beach «. Hancock (N. H.) . . 107,157 
 
 Beck V. Thompson (W. Va.) 89 
 
 Beck & G. H. Co. v. Knight (Ga.) 196, 352 
 
 Becker v. Phila. & R. T. R. R. Co. (Pa.) 221 
 
 Bedford, Duke of, v. Ellis (Eng.) 213 
 
 Beede v. Lamprey (N. H.) 186 
 
 Bell V. Cunningham (U. S.) 295 
 
 Belt V. Lawes (Eng.) 354 
 
 Benjamm v. Storr (Eng.) 200, 201 
 
 Bennett v. Beam (Mich.) 330 
 
 V. Lockwood (N. Y.) 78 
 
 V. Smith (N. Y.) 162 
 
 Benson v. Maiden & Melrose G. L. Co. (Mass.) 78 
 
 Benton v. Collins (N. C.) 354 
 
 Bergmann v. Jones (N. Y.) 86 
 
 Bernstein v. Meech (N. Y.) 26, 226 
 
 Berry v. Da Costa (Eng.) 329, 330 
 
 Beveridge v. Lewis (Cal.) 134, 218 
 
 Bibb V. Freeman (Ala.) 336 
 
 Bibb Broom Com Co. v. Atchison, T. & S. F. Ry. Co. (Minn.) ... 42 
 
 Bickford v. Rich (Mass.) 144 
 
 Bigaouette v. Paulet (Mass.) 175 
 
 Bingham v. Weiderwax (N. Y.) 340 
 
 Birdsinger v. McCormick Harvesting Co. (N. Y.) 67 
 
 Bistline v. Ney (la.) 72 
 
 Black V. Carrolton R. R. Co. (La.) 172 
 
 Blackman v. Gardner, etc. Bridge (Me.) 159 
 
 Blackstone v. Alemannia F. Ins. Co. (N. Y.) 288 
 
 Blagge V. Ilsley (Mass.) 60, 61, 174 
 
 Blake v. Lord (Mass.) 47, 152 
 
 V. Midland Ry. Co. (Eng.) 179 
 
 Blanchard ». Ely (N. Y.) 27 
 
 Blot V. Boiceau (N. Y.) 293 
 
 Blumhardt v. Rohr (Md.) 163 
 
 Blydenburgh v. Welsh (U. S.) 128 
 
TABLE OF CASES. XV 
 
 Bodkin v. W. U. Tel. Co. (U. S.) 321 
 
 Bodlewell, The (Eng.) . . . . 352 
 
 Bodleyo). Reynolds (Eng.) . .' 61 
 
 Bogert V. Burkhalter (N. Y.) 153 
 
 Boiling V. Lersner (Va.) 210 
 
 Bonte V. Postell (Ky.) 151 
 
 Boom Co. V. Patterson (U. S.) 132, 222 
 
 Booth V. Ratt6 (Eng.) 202 
 
 V. Spuyten Duyvil R. M. Co. (N. Y.) 69 
 
 Borradaue v. Brunton (Eng.) 271 
 
 Borries v. Hutchinson (Eng.) 68 
 
 Boston Mfg. Co. V. Fiske (tj. S.) 314 
 
 Boston Woven Hose & R. Co. i;. Kendall (Mass.) 272 
 
 Boutwell V. Marr (Vt.) 213 
 
 Bowman v. Humphrey (la.) . 202 
 
 Boyle V. Brandon (Eng.) 60 
 
 V. Edwards (Mass.) .' . 336 
 
 Bradley v. Fuller (Mass.) 206 
 
 Bradshaw v. Crosby (Mass.) 339 
 
 Bradt i;. New Nonpareil Co. (la.) lU 
 
 Brannon v. Hursell (Mass.) 141 
 
 Brant v. Gallup (111.) 77 
 
 Braswell v. American Life Ins. Co. (N. C.) 291 
 
 Braun D. Craven (111.) 110 
 
 Brinsmead v. Harrison (Eng.) ^ . . 183 
 
 British Col. S. M. Co. v. Nettleship (Eng.) 33, 55, 70 
 
 Britton V. Turner (N. H.) '231 
 
 Brook V. Rawle (Eng.) 165 
 
 Broughel v. Southern N. E. Tel. Co. (Conn.) 177 
 
 Brown v. Bowen (N. Y.) 122 
 
 V. Chicago, M. & St. P. Ry. Co. (Wis.) 313 
 
 V. Chicago & N. W. Ry. Co. (Wis.) 177 
 
 V. Cummings (Mass.) 4, 54 
 
 V. Evans (U. S.) 88, 89 
 
 V. Haven (Vt.) 282 
 
 V. Kendall (Mass.) 13 
 
 V. McGran (U. S.) 293 
 
 «. Memphis & C. R. R. Co. (U. S.) 314 
 
 V. MuUer (Eng.) 261 
 
 V. Postal Tel. Co. (N. C.) 324 
 
 V. Swineford (Wis.) 88, 89 
 
 V. Taylor (Tenn.) 339 
 
 V. Watson (Me.) 202 
 
 V. White (Pa.) . . ■ 134 
 
 Bruce v. Coleman (Ohio) 236 
 
 V. Learned (Mass.) 191 
 
 Brunsden v. Humphrey (Eng.) 121 
 
 Brunswick, Duke of, v. Slowman (Eng.) 195 
 
 Buenzle w. Newport Amusement Co. (R. I.) Ill 
 
 Bundy v. Maginess (Cal.) > 89 
 
 Burk ». Serrin (Pa.) 342 
 
 Burlingame v. Goodspeed (Mass.) 287 
 
 Burnett v. Simpkins (111.) 330 
 
 Burrage v. Crump (N. C.) 239 
 
 Burton v. Pinkerton (Eng.) ; 32 
 
 Busell Trimmer Co. v. Cobum (Mass.) 78 
 
 Bush V. Prosser (N. Y.) 161 
 
XVI TABLE OF CASES. 
 
 Page 
 
 Butler V. Manhattan R. R. Co. (N. Y.) 28 
 
 Byne v. Moore (Eng.) 167 
 
 Cadman v. Markle (Mich.) 229 
 
 Cahen v. Piatt (N. Y.) 265 
 
 Calton V. Bragg (Eng.) 136 
 
 Campbell v. Somerville (Mass.) 282 
 
 Canadian Pac. Ry. Co. v. Parke (Eng.) 220 
 
 D.Roy (Eng.) 220 
 
 Carmean v. North Am. T. & T. Co. (Wash.) 256 
 
 Carpenter v. Dresser (Me.) 126 
 
 D. New York, N. H. & H. R. R. Co. (N. Y.) 314 
 
 V. Providence Wash. I. Co. (U. S.) 287 
 
 Carrr. Edwards (Eng.) 136 
 
 Carter v. Towne (Mass.) 58 
 
 Caiy V. Gruman (N. Y.) 133 
 
 V. Preferred Ace. Ins. Co. (Wis.) 62 
 
 Cecconi v. Redden (Mass.) 335 
 
 Cecil V. Hicks (Va.) 141 
 
 Central of Ga. Ry. Co. v. Hall (Ga.) 144, 254 
 
 V. Price (Ga.) 55 
 
 Chapman v. Kirby (HI.) 25 
 
 V. Thames Mfg. Co. (Conn.) 83 
 
 «. W. U. Tel. Co. (Ga.) 322 
 
 Chase v. Allen (Mass.) 243 
 
 Chaude B. Shepherd (N. Y.) 239 
 
 Cherry v. Chicago & A. R. R. Co. (Mo.) 254 
 
 V. McCaU (Ga.) 89 
 
 Chicago V. Huenerbein (111.) 26 
 
 Chicago & A. R. R. Co. v. Flagg (111.) . . ' 107 
 
 V. Pennell (111.) 49, 56 
 
 Chicago, B. & Q. R. R. Co. v. Hale (111.) 305 
 
 Chicago City Ry. Co. v. Saxby (111.) 57 
 
 Chicago & N. W. Ry. Co. v. Stanbro (111.) 310 
 
 Chicago, R. I. & P. R. R. Co. v. Carey (111.) 76 
 
 Chicago Wrecking House Co. v. United States (U. S.) 241 
 
 Citizens' S. Ry. Co. v. Termaine (Ind.) 172 
 
 Claridge v. So. Staffordshire Tram. Co. (Eng.) 124 
 
 Clark V. Barnard (U. S.) . 248 
 
 V. Chambers (Eng.) 49, 52 
 
 V. Downing (Vt.) 156 
 
 V. Gilbert (N. Y.) 230 
 
 V. London Gen. Om. Co., Ltd. (Eng.) 176 
 
 V. Marsiglia (N. Y.) 267 
 
 V. Newsam (Eng.) 94 
 
 V. Pinney (N. Y.) 263 
 
 Clason 1). Baldwin (N. Y.) 208 
 
 Clements v. Schuylkill, etc. R. Co. (Pa.) 246 
 
 Cleveland, C. C. & St. L. Ry. Co. v. Ohio Postal Tel. C. Co. (Ohio) . 198 
 
 Clow V. Brogden (Eng.) 333 
 
 Clyde Bank E. & S. Co. v. Castaneda (Eng.) 247, 249 
 
 Cockbum v. Alexander (Eng.) 251 
 
 Coe, In re (la.) 346 
 
 Coffey V. Nat. Bank of Mo. (Mo.) 184 
 
 Coggs V. Bernard (Eng.) 94, 299 
 
 Coil V. Wallace (N. J.) 329 
 
 Cole V. German S. & L. Soc. (U. S.) 58 
 
TABLE OF CASES. XVll 
 
 Page 
 
 Collard v. South Eastern Ry. Co. (Eng.) 307 
 
 CoUingridge v. Royal Ex. Ass. Coip. (Eng.) 286 
 
 Collins V. West Jersey Exp. Co. (N. J.) 53 
 
 Colwell V. Foulks (N. Y.) 246 
 
 Com. of Public Works v. Hills (Eng.) 250 
 
 Commonwealth v. Porter (Mass.) 3 
 
 Congregation Beth Elohim v. Cent. Presb. Church (N. Y.) .... 341 
 
 Connelly v. W. U. Tel. Co. (Va.) .... 114 
 
 Conner v. Reeves (N. Y.) . . . . 277 
 
 Connorsville W. Co. v. The McFarlan C. Co. (Ind.) ... . 27 
 
 Cook V. Curtis (Mich.) 340 
 
 V. Fowler (Eng.) 141 
 
 Coolidge V. Neat (Mass.) . 329 
 
 Cooney v. Pulhnan Pal. Car Co. (Ala.) 314 
 
 CorUes v. E. W. Walker Co. (U. S.) 169 
 
 Cortelyou v. Lansing (N. Y.) ... , . . 149 
 
 Cory V. Thames I. W'ks Co. (Eng.) 263 
 
 Costigan v. Mohawk & H. R. R. Co. (N. Y.) 79 
 
 Cotterell v. Jones (Eng.) 205 
 
 Cowan ». W. U. Tel. Co. (la.) .... 323 
 
 Cowden v. Wright (N. Y.) 172 
 
 Cowdery v. Greenlee (Ga.) .... 341 
 
 Cowdry v. Carpenter (N. Y.) 243 
 
 Cowing V. Cowing (Eng.) 175 
 
 Crabtree v. Dawson (Ky.) 94 
 
 Craker v. Chicago & N. W. Ry. Co. (Wis.) 90, 104 
 
 Credle v. Ayers (N. C.) 211 
 
 Crouch V. Gt. Northern Ry. Co. (Eng.) 302 
 
 Cuff V. Newark & N. Y. R. R. Co. (N. J.) 44 
 
 Culberson v. Alabama Const. Co. (Ga.) 229 
 
 Cumberland & O. Canal Co. v. Hitchings (Me.) 202 
 
 Cumberland T. & T. Co. v. Hendon (Ky.) 323 
 
 Curry v. Larer (Pa.) 239 
 
 Curtis V. Baugh (lU.) 279 
 
 V. Brannon (Tenn.) 337 
 
 V. Rochester & S. R. R. Co. (N. Y.) 120, 160 
 
 Cutting V. Grand T'runk Ry. Co. (Mass.) 306 
 
 Daggett v. Davis (Mich.) 186 
 
 Dakin v. Williams (N. Y.) 245 
 
 Dalton V. Beers (Conn.) 85, 86 
 
 V. Southeastern Ry. Co. (Eng.) 179 
 
 Damon v. Moore (N. Y.) ... 174 
 
 Dana «. Fiedler (N. Y.) .• • • • 143,261 
 
 Daniels v. Newton (Mass.) ' 267 
 
 «. N. Y., N. H. & H. R. R. Co. (Mass.) 44 
 
 Danziger v. Boyd (N. Y.) 210 
 
 Darley Main Colliery Co. v. Mitchell (Eng.) 119 
 
 Davis V. Bliss (N. Y.) 195 
 
 V. Poland (Me.) 78 
 
 V. Tacoma Ri & P. Co. (Wash.) 104 
 
 Dawson v. Morgan (Eng.) 283 
 
 Day V. Woodworth (U. S.) 85 
 
 DeForest v. Fulton F- Ins. Co. (N. Y.) 286 
 
 De la Bere r. Pearson, Ld. (Eng.) 55 
 
 Delavan v. Bates (Mich.) 150 
 
 Demarest v. Little (N. J.) ' 181 
 
 b 
 
XVIU TABLE OF CASES. 
 
 Page 
 
 Deming v. Grand Trunk R. R. Co. (N. H.) 309 
 
 Dennick v. Railroad Co. (U. S.) 346 
 
 Dennis v. Barber (Pa.) . • 184 
 
 V. Clark (Mass.) 173 
 
 V. Maxfield (Mass.) . . . 25 
 
 Denny v. N. Y. C. & H. R. R. R. Co. (Mass.) 42 
 
 Denver & R. G. Ry. Co. v. Harris (U. S.) . 91 
 
 V. Roller (U. S.) Ill 
 
 V. Spencer (Col.) 354 
 
 De Tastett v. Cronisillat (U. S.) 295 
 
 Detzur v. B. Stroh Brew. Co. (Mich.) . 54 
 
 Deverell v. Burnell (Eng.) .... .... 251, 252 
 
 Devereux v. Burgwin (N. C.) . .... 248 
 
 Dicken v. Shepherd (Md.) .... 164 
 
 Dickson v. Renter's T. Co. (Eng.) 315 
 
 Diestal v. Stevenson (Eng.) 238 
 
 Dimmick v. Lockwood (N. Y.) 338 
 
 Disbrow v. Westchester Hardwood Co. (N. Y.) 199 
 
 Dodge V. Perkins (Mass.) 136, 141, 143 
 
 Doe V. Filliter (Eng.) ... ... ... 209 
 
 V. Perkins (Ky.) ... 209 
 
 Donahoe v. Emery (Mass.) ... 339 
 
 Dorsey v. Moore (N. C.) . . . . 122 
 
 Dougherty v. Stepp (N. C.) 196 
 
 Dow V. Humbert (U. S.) 126 
 
 V. Winnipesaukee G. & E. Co. (N. H.) 29 
 
 Drown v. Northern Ohio Trac. Co. (Ohio) 74 
 
 Dubois V. Hermance (N. Y.) 282 
 
 Du Bost V. Beresford (Eng.) . . 134 
 
 Duckworth v. Alison (Eng.) 246 
 
 Duffield V. Scott (Eng.)' .... 282 
 
 Dulieu V. White (Eng.) . . .113 
 
 Dullaghan v. Fitch (Wis.) . ... 240 
 
 Dunn V. Bucknall (Eng.) . . .... 310 
 
 Durst V. Swift (Tex.) .... 242 
 
 Dushane i;. Benedict (U. S.) . . . . . ... 271 
 
 Dustan v. McAndrew (N. Y.) . . . 264 
 
 Duval V. Dacy (Ohio) 166 
 
 Dwight V. Elmira, C. & N. R. R. Co. (N. Y.) 199 
 
 Eakin v. Scott (Tex.) 242 
 
 Earle v. Commonwealth (Mass.) 134 
 
 East & West I. D. & B. J. Ry. Co. v. Gattke (Eng.) 11 
 
 Easton v. Penna. & O. Canal Co. (Ohio) 240 
 
 Eaton V. Boissonnault (Me.) 141 
 
 Eckington & S. H. Ry. Co. v. McDevitt (U. S.) 334 
 
 Eddy V. Coffin (Mass.) . 332 
 
 Edwards v. Leavitt (Vt.) 89 
 
 Ege V. Kille (Pa.) , . . . 211 
 
 Ehrgott V. The Mayor (N. Y.) 25, 49, 51 
 
 Elbinger Actien-Gesellschaft v. Armstrong (Eng.) 68 
 
 Elizabethtown & P. R. R. Co. v. Geoghegan (Ky.) 240 
 
 EUer V. Railroad (N. C.) 120 
 
 Ellington v. Ellington (Miss.) 174 
 
 Elliott V. Hayden (Mass.) 183 
 
 V. Van-Buren (Mich.) 89 
 
 Ellis V. Hilton (Mich.) 6, 78 
 
TABLE OF CASES. xix 
 
 Page 
 
 Ellison V. Johnson (S. C.) 271 
 
 Elmer v. Fessenden (Mass.) .... 125 
 
 Elwood V. W. U. Tel. Co. (N. Y.) ..'.'.'.'.'.['.'.'.'.'..'. 318 
 
 Emblen v. Myers (Eng.) 85 
 
 Emerson v. Pacific Coast & N. P. Co. (Minn.) .......... 26 
 
 Emery v. Smith (N. H.) . . . 229 
 
 Engelhart v. Farrant (Eng.) 50 52 
 
 English V. So. Pacific Co. (Utah) '.'.'.'.'.. 354 
 
 Erwin v. Nolde (Pa.) ' 132 
 
 Evansich v. Gulf, C. & S. F. Ry. Co. (Tex.) .........'.'. 172 
 
 Everson v. Powers (N. Y.) 256 
 
 Evey V. Mexican Cent. R. R. Co., Ld. (U. S.) . ! 347' 
 
 Ewing V. Pittsburg, C. & St. L. Ry. Co. (Pa.) 112 
 
 Fairfax v. New York Central & H. R. R. R. Co. (N. Y.) 132 
 
 Famsworth 1;. Boardman (Mass.) 277 
 
 Faulkner v. Closter (la.) " 260 
 
 V. Hart (N. Y.) ' ! 304 
 
 Fay u. Gujmon (Mass.) 119 
 
 V. Parker (N. H.) . . 87, 89 
 
 Fearing v. Clark (Mass.) 258 
 
 Featherston v. Wilkinson (Eng.) 303 
 
 Fell V. Northern Pacific R. R. Co. (U. S.) 108 
 
 Fenstermaker v. Tribune Pub. Co. (Utah) 162 
 
 Fergusson v. Anglo-Am. Tel. Co. (Pa.) 316 
 
 Ferrero v. W. U. Tel. Co. (D. C.) 315, 320 
 
 Ferris v. Comstock (Conn.) . . 26 
 
 Fetter v. Beal (Eng.) 119 
 
 Fidelity & D. Co. v. L. Bucki & Son L. Co. (U. S.) 31 
 
 Finckh v. Evers (Ohio) 282 
 
 Finlay v. Chimey (Eng.) 326 
 
 First Nat. Bank v. Fourth Nat. Bank (N. Y.) 293, 295 
 
 FitzSimmons & C. Co. v. Braun (111.) 77 
 
 Flagg V. Roberts (111.) 166 
 
 Fleming v. Bank of New Zealand (Eng.) 351 
 
 V. Beck (Pa.) 45 
 
 Fletcher v. Dyche (Eng.) 246 
 
 V. Rylands (Eng.) 20 
 
 Florida Southern Ry. Co. v. Hirst (Fla.) 95 
 
 Flureau v. Thomhill (Eng.) 342 
 
 Folsom V. Apple R. L. D. Co. (Wis.) 198 
 
 Foos V. SabLd (111.) 266 
 
 Forbes v. Boston & L. R. R. Co. (Mass.) 310 
 
 Forsyth v. Wells (Pa.) 15, 126, 186 
 
 Foster v. Adams (Vt.) 265 
 
 Fowler v. Oilman (Mass.) 124 
 
 V. Old North State I. Co. (N. C.) 284 
 
 Fowles V. Briggs (Mich.) 53 
 
 Fox V. Boston & Me. R. R. Co. (Mass.) 66 
 
 France D. Gaudet (Eng.) 61,132,188 
 
 Franklin v. Southeastern Ry. Co. (Eng.) 179 
 
 Frazer v. Bigelow C. Co. (Mass.) 144 
 
 Freeland v. Penn. R. R. Co. (Pa.) 199 
 
 Freeman v. Macon G. L. & W. Co. (Ga.) 352 
 
 Freer v. Cowles (Ala.) . . ^ 190 
 
 Fremont, E. & M. V. R. R. Co. v. Harlin (Neb.) 198 
 
 French v. Barber Asp. P. Co, (U. S.) 222 
 
XX TABLE OP CASES. 
 
 Page 
 
 Frick V. St. Louis, K C. & N. Ry. Co. (Mo.) 172 
 
 Friedland v. Myers (N. Y.) 227 
 
 Frierson v. Hewett (S. C.) 168 
 
 Fritz V. Hobson (Eng.) 200, 201 
 
 Fromm d. Ide (N. Y.) 76 
 
 Frost V. Knight (Eng.) 267 
 
 Frothingham v. Moore (N. H.) 184 
 
 Fry V. Bennett (N. Y.) 88 
 
 Fuller V. Rice (Mich.) 229 
 
 Galligher v. Jones (U. S.) 188 
 
 Galveston, H. & S. A. Ry. Co. v. Zantzinger (Tex.) 79 
 
 Gambrill v. Schooley (Md.) 86 
 
 Gammon ■». Howe (Me.) 245 
 
 Ganssly v. Perkins (Mich.) 93 
 
 Gardner v. Deeds (Tenn.) 227 
 
 Garland v. Aurin (Tenn.) 122, 353 
 
 Gatzow V. Buening (Wis.) 214 
 
 Gee V. L. & Y. Ry. Co. (Eng.) 63 
 
 Geiger v. West. Md. R. R. Co. (Md.) 240 
 
 Geotskow Bros. Co. v. A. H. Andrews and Co. (Wis.) 69 
 
 Gerbert v. Trustees (N. J.) 342 
 
 Gibbs V. Cruikshank (Eng.) 46, 61, 117 
 
 Gibson v. Torbert (la.) 58 
 
 Giddings v. Freedly (U. S.) 87 
 
 Gilbert v. Berkinshaw (Eng.) 2 
 
 V. Wiman (N. Y.) 277, 278 
 
 Gillespie v. Brooklyn H. R. R. Co. (N. Y.) 104 
 
 Gilligan v. New York & H. R. R. Co. (N. Y.) 172 
 
 Gihnan v. Noyes (N. H.) 49, 59, 60 
 
 Gilmore v. DriscoU (Mass.) 198 
 
 Glaspy V. Cabot (Mass.) 133 
 
 Gleason v. Finney (N. Y.) 252 
 
 Globe Ref. Co. v. Landa C. O. Co. (U. S.) 70 
 
 Goddard v. Grand Trunk Ry. (Me.) 86 
 
 Godkin v. Bailey (N. J.) 356 
 
 Gooden v. Moses (Ala.) 280 
 
 Goodin v. Southern Ry. Co. (Ga.) . 353 
 
 Goodlitle v. Tombs (Eng.) 208 
 
 Goodloe V. Goodloe (Tenn.) 228 
 
 Gordon v. Brewster (Wis.) 256 
 
 V. Swan (Eng.) 136 
 
 Gore V. Brazier (Mass.) . . , 335 
 
 Grable v. Margrave (111.) 174 
 
 Graham v. Bickham (U. S.) 234 
 
 Grand Rapids Booming Co. v. Jarvis (Mich.) 122 
 
 Grand Tower Co. v. Phillips (U. S.) 5, 131, 223, 262 
 
 Grand Trunk Ry. Co. v. Jennings (Eng.) 178, 180 
 
 Grant v. Talhnan (N. Y.) 339 
 
 Gray v. Build'g Trades Council (Minn.) 214 
 
 Greaves v. Ashlin (Eng.) 261 
 
 Gr^bert-Borgnis v. Nugent (Eng.) 69 
 
 Greely, S. L. & P. R. R. Co. v. Yeager (Col.) 87 
 
 Green v. Boston & L. R. R. Co. (Mass.) 133 
 
 V. W. U. Tel. Co. (N. C.) 322 
 
 Green Bay & M. C. Co. t>. Kaukauna W. P. Co. (Wis.) .... 198, 349 
 Greene v. Goddard (Mass.) 27, 34 
 
TABLE OF CASES. XXI 
 
 Page 
 
 Greenwall T. C. Co. v. Markowitz (Tex.) 267 
 
 Greer v. New York (N. Y.) ' . . . . 122 
 
 V. Tweed (N. Y.) 246 
 
 Gregory v. McDowel (N. Y.) 262 
 
 V. Slaughter (Ky.) 159 
 
 Griffey v. Kennard (Neb.) 210 
 
 Griffin v. Colver (N. Y.) 6, 15, 21, 23, 27, 70 
 
 V. Jackson L. & P. Co. (Mich.) 58 
 
 V. Roanoke L. Co. (N. C.) 134 
 
 Griffith V. Blackwater B. & L. Co. (W. Va.) 227 
 
 Grindle ». Eastern Exp. Co. (Me.) 77, 280 
 
 Grinnell v. W. U. Tel. Co. (Mass.) 315 
 
 Grose v. Hennessy (Mass.) 276 
 
 Grosso V. Del., L. & W. R. R. Co. (N. J.) 176 
 
 GroBvenor Hotel Co. v. Hamilton (Eng.) 203 
 
 Guille V. Swan (N. Y.) 42 
 
 Gulf, C. & S. F. R. R. Co. V. Beall (Tex.) 176 
 
 V. Hayter (Tex.) 113 
 
 Gust V. MePherson (Mont.) 89 
 
 Gustafson v. Rustemneyer (Conn.) 272 
 
 Hadlby v. Baxendale (Eng.) 5, 15, 64 
 
 Haggart v. Morgan (N. Y.) 234 
 
 Eahn v. Bettinguen (Minn.) . ' 212 
 
 V. Horstman (I^.) 247 
 
 Haines v. Schultz (N. J.) 91 
 
 Hales V. London & N. W. Ry. Co. (Eng.) 308 
 
 Halestrap v. Gregoiy (Eng.) 61 
 
 Haley v. St. Louis T. Co. (Mo.) 58 
 
 Ham V. Goodrich (N. H.) 229 
 
 Hamilton v. MePherson (N. Y.) 76 
 
 Hamlin v. Great N. Ry. Co. (Eng.) 75, 100 
 
 Hammer v. Schoenfelder (Wis.) 66 
 
 Hammond v. Bussey (Eng.) 63, 69 
 
 Hancock «. W. U. Tel. Co. (N. C.) 110 
 
 Hansley v. Jamesville & W. R. R. Co. (N. C.) 96 
 
 Hanson v. European & N. A. R. R. Co. (Me.) 92, 160 
 
 Hare v. Grant (N. C.) 282 
 
 Harrington v. Murphy (Mass.) 339 
 
 Harris v. Panama R. R. Co. (N. Y.) 132 
 
 Harrisburg, The (U.S.) 176 
 
 Harrison v. Berkley (S. C.) 53 
 
 ,v. Ely (m.) 86, 104 
 
 V. Wright (Eng.) 234, 235 
 
 Hart D. Penn. R. R. Co. (U. S.) 311 
 
 Hartford & 8. Ore Co. v. Miller (Conn.) 337 
 
 Harvev v. Conn. & P. R. R. Co. (Mass.) 301 
 
 D.'Mason City & F. D. R. Co. (la.) 356 
 
 Haseltine D. Guild (N. H.) 279 
 
 Head v. Hargrave (U. 8.) 134 
 
 Heard v. James (Miss.) 192 
 
 Hebert v. Lake Charles L L. & W. Co., Ld. (La.) 58 
 
 Hefley v. Baker (Kan.) 93 
 
 Heine ». Meyer (N. Y.) 230 
 
 Hemrninger v. Western Ass. Co. (Mich.) 230 
 
 Henderson v. Dade Coal Co. (Ga.) 53 
 
 Hendrix v. Jefferson Co. Savings Bank (Ala.) 294 
 
XXll TABLE OF CASES. 
 
 Page 
 
 Henry v. Flagg (Mass.) 145 
 
 Herreschoff v. Tripp (R. I.) 209 
 
 Hetherington v. Northeastern Ry. Co. (Eng.) 179 
 
 Hexter v. Knox (N. Y.) 333 
 
 Hibbard v. W. U. Tel. Co. (Wis.) 82 
 
 Hickman v. Haynes (Eng.) 265 
 
 Higgins V. Cent. N. E. & W. R. R. Co. (Mass.) 347 
 
 Higginson v. Weld (Mass.) 301 
 
 Hilderbrand v. Am. Fine Art Co. (Wis.) 257 
 
 Hill V. Smith (Vt.) 262 
 
 Hilton V. Jesup Banking Co. (Ga.) 351 
 
 Hinchman v. P^re Marquette R. R. Co. (Mich.) . 51 
 
 Hinckley v. Pittsburg Bess. Steel Co. (U. S.) 269 
 
 Hinde v. Liddell (Eng.) 67 
 
 Hindman v. First Nat. Bank (U. S.) '273 
 
 Hinton v. Sparkes (Eng.) 242 
 
 Hixon V. Hixon (Tenn.) 251 
 
 Hixt's Case (Eng.) 2 
 
 Hoadley v. Northern Trans. Co. (Mass.) 49 
 
 Hoagiand v. Segur (N. J.) 248 
 
 Hobbs V. London & S. W. Ry. Co. (Eng.) 20, 63, 65, 100, 312 
 
 Hochster v. De la Tour (Eng.) 266 
 
 Hodges V. Causey (Miss.) 132 
 
 Hodgkins v. Price (Mass.) 126, 211 
 
 Hodgson V. Wood (Eng.) 277 
 
 Hoffman v. King (N. Y.) 58 
 
 Holcomb V. WyckofE (N. J.) 259 
 
 Holden v. Trust Co. (U. S.) 141 
 
 Homans v. Boston Ele. Ry. Co. (Mass.) 113 
 
 Honore v. Lamar F. I. Co. (111.) 287 
 
 Hooker v. Newton (Wis.) 86 
 
 Hopkins v. Lee (U.S.) .' 342 
 
 Hopple V. Higbee (N. J.) . . . 126 
 
 Hopsapple v. Rome, W. & O. R. R. Co. (N. Y.) 300 
 
 Horgan v. Pacific Mills (Mass.) 173 
 
 Home V. Midland Ry. Co. (Eng.) 307 
 
 Horres v. Berkeley Chem. Co. (S. C.) 274 
 
 Hosking v. Phillips (Eng.) 197 
 
 Hough V. People's F. Ins. Co. (Md.) 286 
 
 Houston, E. & W. T. R. R. Co. v. Campbell (Tex.) 24 
 
 Hovey v. Page (Me.) 327 
 
 Howay v. Going-Northrup Co. (Wash.) 256 
 
 Howe S. M. Co. v. Bryson (la.) 21 
 
 Howell V. Moores (111.) 340 
 
 Huber v. Teuber (D. C.) 89 
 
 Huokle V. Money (Eng.) 86, 87 
 
 Hunt V. O'Neill (N. J.) 209 
 
 Hunter v. Prinsep (Eng.) 184 
 
 Huston V. Freemansburg (Pa.) 112 
 
 Hutchins v. Hutchins (N. Y.) 205 
 
 Hutchinson v. Snider (Pa.) 30 
 
 Huyett-Smith Mfg. Co. v. Gray (N. C.) 273 
 
 Hyatt V. Adams (Mich.) 176 
 
 Hydraulic Eng. Co. v. McHafi&e (Eng.) 68 
 
 Hylton V. Brown (Wash.) 126 
 
TABLE OP CASES. Xxiii 
 
 Page 
 
 I. DE S. V. W. de S. (Eng.) 107 156 
 
 Illinois Cent. R. R. Co. ■». Cobb (III.) '.'.'.'.'.'.'. 29?' 307 
 
 V. Handy (Miss.) '.'..'.'.'.'.....' 314 
 
 V. Houchins (Ky.) '.'.'.'.' 87 
 
 Indianapolis, B. & W. Ry. Co. v. Bimey (111.) . . 77 
 
 Indianapolis, P. & C. Ry. Co. v. Pitzer (Ind.) . 56 
 
 Ingalls V. Bills (Mass.) • . . . . 78 
 
 Ingledew v. Northern R. R. (Mass.) ......'.". ". ". . . . ' 308 
 
 Ingraham v. Pullman Co. (Mass.) 73 77 
 
 Insurance Co. v. TJpdegraff (Pa.) . ; '.".'.'... 286 
 
 Insurance Cos. v. Thompson (U. S.) 282 
 
 International Trust Co. v. Boardman (Mass.) '. '. . . '287 
 
 lonides v. Universal M. Ins. Co. (Eng.) '. . '. . . 62 
 
 Isham V. Dow (Vt.) •.....'.'.'... 55 
 
 Jackson v. Wood (N. Y.) 211 
 
 Jacobson v. Van Boening (Neb.) [ , 18 
 
 James v. Hodsden (Vt.) 228 
 
 Jayne v. Loder (U. S.) 355 
 
 Jefferson v. Adams (Del.) 89 
 
 Jefferson Co. Sav. Bank v. Hendrix (Ala.) 295 
 
 Jemmison v. Gray (la.) . 240 
 
 Jenkins v. Jones (Eng.) 340 
 
 V. Penn. R. R. Co. (N. J.) 82 
 
 Jennings v. Grand Trunk Ry. Co. (N. Y.) 300 
 
 ■u. Rundall (Eng.) 163 
 
 Jersey City Print. Co. v. Cassidy (N. J.) 214 
 
 Jewett V. Whitney (Me.) 15, 83 
 
 J. M. James Co. v. Bank (Tenn.) 351 
 
 Johnson v. Jenkins (N. Y.) ' 331 
 
 V. Levy (La.) 327 
 
 V. Smith (Me.) 89 
 
 V. WeUs, Fargo, & Co. (Nev.) 108 
 
 ». W. U. Tel. Co. (N. C.) 346 
 
 Johnston v. Crawford (N. C.) 89 
 
 V. Great West. Ry. Co. (Eng.) 354 
 
 V. Milling (Eng.) 267 
 
 John V. FarweU Co. v. Wolf (Wis.) 185 
 
 Jonas V. Noel (Tenn.) 134, 332 
 
 Jones V. Boyce (Eng.) 75 
 
 Jordan v. Benwood (W. Va.) 122 
 
 Joyner v. Weeks (Eng.) 333 
 
 Kadish v. Young (111.) 267 
 
 Kansas ttty, F. S. & M. R. R. "Co. v. Little (Kan.) 92 
 
 Kavanaugh v. Day (R. I.) 344 
 
 Keeble v. Keeble (Ala.) 243 
 
 Kelley v. Riley (Mass.) 329 
 
 v. Town of Bradford (Vt.) 231 
 
 Kellogg V. Thompson (Mass.) 187 
 
 Kelly V. Pierce (N. D.) 265 
 
 Kemble v. Farren (Eng.) 241 
 
 Kemochan v. N. Y. Bowery F. I. Co. (N. Y.) 286, 287 
 
 Keyes v. Pittsburg & W. Coal Co. (Ohio) 186 
 
 Kifboume ■». Burt & B. Lumber Co. (Ky.) 244 
 
 Kiley v. W. U. Tel. Co. (N. Y.) 315 
 
 Kille V. Ege (Pa.) 211 
 
XXIV TABLE OF CASES. 
 
 Page 
 
 Kmball v. Holmes (N. H.) 10? 
 
 Kimberly v. Howland (N. C.) 115, 172 
 
 King V. Chicago, M. & St. P. Ry. Co. (Minn.) 121 
 
 i>. Root (N. Y.) 161 
 
 V. State M. F. Ins. Co. (Mass.) 284, 286, 287 
 
 Kline v. Kline (Ind.) 107 
 
 Kniffen v. McConnell (N. Y.) 329 
 
 Knight V. Egerton (Eng.) 148 
 
 i;. WUoox (N. Y.) 60,61 
 
 Knoxville T. Co. v. Lane (Tenn.) 96 
 
 Kock i;. Streuter (111.) 253 
 
 Koerber v. Patek (Wis.) 108 
 
 Kountz V. Citizens' Oil R. Co. (Pa.) 131 
 
 V. Kirkpatrick (Pa.) 129, 131 
 
 Kreuziger v. Chicago, etc. R. Co. (Wis.) 56 
 
 Kuhn V. Chicago, M. & St. P. R. R. Co. (la.) 92 
 
 Kujek «. Goldman (N. Y.) 87 
 
 La CotjRsiER V. Russell (Wis.) 256 
 
 Laffin V. Willard (Mass.) 85 
 
 Laidlaw v. Sage (N. Y.) 43, 54 
 
 Laird v. Pim (Eng.) 341, 342 
 
 Lake v. Milliken (Me.) 56 
 
 Lake Shore & M. S. Ry. Co. v. Frantz (Pa.) 99 
 
 V. Prentice (U. S.) 91 
 
 Lampman v. Cochran (N. Y.) 241 
 
 Lancashire & Y. Ry. Co. v. Gidlow (Eng.) 302 
 
 Langabaugh v. Anderson (Ohio) 20 
 
 Langford v. Rivinus (U. S.) 187 
 
 Larios V. Bonany Y Gurety (Eng.) 281 
 
 Lamed v. Hudson (N. Y.) 208 
 
 Larson v. Chase (Minn.) 108 
 
 Lattimore v. Simmons (Pa.) 327 
 
 Laurent v. Chatham F. Ins. Co. (N. Y.) 285 
 
 V. Vaughn (Vt.) 309 
 
 Law V. Local Board of Redditch (Eng.) 247 
 
 Lawrence v. Cooke (Me.) 329 
 
 II. Rice (Mass.) 85 
 
 Lea V. Whitaker (Eng.) 242 
 
 Leavitt v. The Fiberioid Co. (Mass.) 270 
 
 Le Blanche v. London & N. W. Ry. Co. (Eng.) 75, 78, 313 
 
 Ledyard v. Jones (N. Y.) 194 
 
 Leeds v. Cook (Eng.) 330 
 
 0. Met. Gas Light Co. (N. Y.) 27 
 
 Legg V. Britten (Vt.) 177 
 
 Legge V. Harlock (Eng.) 247 
 
 Leigh V. Patterson (Eng.) 267 
 
 Leonard v. N. Y., etc. Tel. Co. (N. Y.) 76, 320 
 
 Lepla V. Rogers (Eng.) 68 
 
 Le Roy v. Jacobosky (N. C.) 296 
 
 Lewark v. Parkinson (Kan.) . . . .^ 160 
 
 Lewis V. Baker (Eng.) .- 333 
 
 V. Holmes (La.) 32 
 
 _ V. Tapman (Md.) 266 
 
 Lillibridge v. MoCann (Mich.) 67 
 
 lindsey v. Danville (Vt.) 172 
 
 V. Parker (Mass.) 282 
 
TABLE OF CASES. XXV 
 
 Page 
 
 I-ipe V. Eisenlerd (N. Y.) 174 
 
 Little V. Banks (N. Y.) 244 248 
 
 V. Boston & Me. R. R. Co. (Ue.) .' . . 47 
 
 Livingstone v. Rawyards Coal Co. (Eng.) 186 
 
 Locke V. Furze (Eng.) 332 
 
 V. Homer (Mass.) 278, 279 
 
 Lodge Holes Col. Co., Ld. v. Wednesbury (Eng.) ! . . ' 80 
 
 Loesch V. Koehler (Ind.) 353 
 
 Loewe v. Lawlor (U. S.J 212, 214 
 
 Loker v. Damon (Mass.) 73 77 
 
 London, C. & D. Ry. Co. v. Southeastern Ry. Co. (Eng.)' . . . '. . 136 
 Long V. CoakSia (111.) 261 
 
 V. Elberton (Ga.) 218 
 
 Longan v. Welmer (Mo.) 40 
 
 Loosemore v. Radford (Eng.) 278 
 
 Lord V. Staples (N. H.) 281 
 
 Losee v. Buchanan (N. Y.) 20 
 
 Lou^hin v. McCaulley (Pa.) 182 
 
 Louisville & N. R. R. Co. v. Beeler (Ky.) 199 
 
 V. Brooks (Ky.) 86 
 
 V. Graham (Ky.) 347 
 
 V. Coyle (Ky.) 268 
 
 V. Eaden (Ky.) 92 
 
 ». HuU(Ky.) 109 
 
 V. McElwam (Ky.) 178 
 
 V. Wallace (Tenn.) 160 
 
 Lowe V. Peers (Eng.) ^ . . 244 
 
 V. Turpie (Ind.) 280 
 
 Lowery v. Manhattan Ry. C!o. (N. Y.) 51 
 
 Lubrano v. Atlantic Mills (R. I.) 178 
 
 Lucas V. Trunbull (Mass.) 186 
 
 Luesson v. Oshkosh E. L. & P. Co. (Wis.) 349 
 
 Lyle V. Barker (Pa.) 123 
 
 V. McCormick Har. M. Co. (Wis.) 134 
 
 Lyles w. W. U. Tel. Co. (S. C.) 112 
 
 Lynch v. Knight (Eng.) 101, 102, 163, 165 
 
 V. Nurdin (Eng.) 52 
 
 Lyndh v. Great N. Ry. Co. (Minn.) 108 
 
 Lynn G. & E. Co. v. Meriden F. Ins. Co. (Mass.) 62 
 
 McCarthy v. De Armit (Pa.) 94 
 
 McConathy v. Deck (Col.) 93 
 
 McConnell v. Corona Gty W. C!o. (Cal.) 355 
 
 McDermott v. Severe (TJ. S.) 99 
 
 McDonald v. Snelling (Mass.) 53 
 
 McDowall V. Great West. Ry. Co. (Eng.) 50, 52 
 
 McGarr v. Nat. & P. Worsted Mills (R. I.) 170, 173 
 
 McGuflFey v. Humes ( Tenn.) 340 
 
 McGuire v. Gerstley (U. S.) 363 
 
 McHose V. Fulmer (Pa.) 22 
 
 Mclnnis v. Lyman (Wis.) 337 
 
 McKeon v. N. Y., N. H. & H. R. R. Co. (Conn.) 219 
 
 McLean Co. Coal Co. v. Long (111.) 127 
 
 MoMahon v. Field (Eng.) . 312 
 
 V. N. Y. & Erie R. R. Co. (N. Y.) 143 
 
 McMaster v. The State (N. Y.) 140 
 
 McPeek ». W. U. TeL Co. (la.) 321 
 
XXVI TABLE OF CASES. 
 
 Page 
 
 McWillialms v. Bragg (Wis.) 104 
 
 Mace V. Ramsey (N. C.) 303 
 
 Machine Co. v. Compress Co. (Tenn.) 70 
 
 Mack D. South Bound R. R. Co. (S. C.) 113 
 
 Magnin v. Dinsmore (N. Y.) 299, 304 
 
 Maguire v. Middlesex R. R. Co. (Mass.) 4 
 
 V. Sheehan (U. S.) 47 
 
 Mahoney v. Belford (Mass.) 166 
 
 Mahoning Val. Ry. Co. v. De Pascale (Ohio) 150 
 
 Mahurin D. Bickford (N. H.) 145 
 
 Malachy v. Sloper (Eng.) 165 
 
 Malone v. Philadelphia (Pa.) 247 
 
 Maloney v. Nelson (N. Y.) 277 
 
 Manly v. Field (Eng.) 173 
 
 Mantorville R. & T. Co. v. Slingerland (Minn.) 222 
 
 Manvell v. Thomson (Eng.) 60, 173, 174 
 
 Margraf v. Muir (N. Y.) 342, 343 
 
 Markham v. Russell (Mass.) 163 
 
 Marpessa, The (Eng.) . 352 
 
 Marsh v. McPherson (XJ. S.) 48 
 
 Marshall v. Franklin F. Ins. Co. (Pa.) 77 
 
 Martin v. Porter (Eng.) 187 
 
 Maryland Steel Co. u. Mamey (Md.) 57 
 
 Marzetti v. Williams (U. S.) 350 
 
 Masterton v. Mt. Vernon (N. Y.) 27 
 
 V. The Mayor of Brooklyn (N. Y.) 24, 226, 268 
 
 Mather «. Am. Exp. Co. (Mass.) 65 
 
 Mathews v. Sharp (Pa.) 242 
 
 Mauk V. Brundage (Ohio) 356 
 
 Maxwell v. Allen (Me.) 245 
 
 V. Kennedy (Wis.) 92 
 
 Maynard D. Oregon R. R. & N. Co. (Ore.) 110 
 
 Mayo, /?i re (S. C.) 178 
 
 V. Springfield (Mass.) . 126 
 
 Mead v. Wheeler (N. H.) 245, 248 
 
 Meagher v. DriscoU (Mass.) 108 
 
 Mears v. N. Y., N. H. & H. R. R. Co. (Conn.) 311 
 
 Mediana, The (Eng.) 82, 352 
 
 Meidel v. Anthis (111.) 89, 93 
 
 Merryweather v. Nixan (Eng.) 151 
 
 Meyer v. Estes (Mass.) . . 240 
 
 Michael v. Hart (Eng.) 188 
 
 Michigan L. & I. Co. v. Deer Lake Co. (Mich.) . . . ^ 88 
 
 Mickles v. Hart (N. Y.) 85 
 
 Middlekauff v. Smith (Md.) 333 
 
 Milbum V. Belloni (N. Y.) 271 
 
 Milhau V. Sharp (N. Y.) 201 
 
 Millard v. Brown (N. Y.) 93 
 
 Miller «. Johnsbn (111.) 167 
 
 V. Mariners' Church (N. J.) . . . 73 
 
 V. Rosier (Mich.) 329, 331 
 
 MiUs V. Dow (U. S.) 277 
 
 V. East London Union (Eng.) 333 
 
 Milwaukee & St. P. R. R. Co. v. Arms (U. S.) 85, 95 
 
 ■I. Kellogg (U. S.) 54, 57 
 
 Missouri, K. & T. Ry. Co. v. Wood (Tex.) 55 
 
 Missouri Pac. Ry. Co. v. Columbia (Kan.) 58 
 
TABLE OF CASES. XXVll 
 
 Page 
 
 Mitchell V. Rochester Ry. Co. (N. Y.) 112 
 
 V. Stanley (Conn.) " 339 
 
 Mobile & M. Ry. Co. v. Gilmer (Ala.) 334 
 
 Monmouth Pk. Assn. v. Wallis Iron Works (N. J.) 246 
 
 Montgomery v. Reed (Me.) 336 
 
 Moody V. Whitney (Me.) 127 
 
 Moore v. Man. Nat. Bank (N. Y.) 161 
 
 V. Meagher (Eng.) 165 
 
 Morrell v. Irving F. Ins. Co. (N. Y.) 252 
 
 Morrison v. Berkey (Pa.) 281 
 
 V. Davis (Pa.) 49 
 
 Morse v. Hutchins (Mass.) 272 
 
 Mowbray v. Merryweather (Eng.) 66 
 
 MuUiner v. Florence (Eng.) 185 
 
 Murdock v. Boston & A. R. R. Co. (Mass.) 104 
 
 Murphy v. Fond du Lac (Wis.) 15 
 
 V. Hobbs (Col.) 89 
 
 Murray v. Cast L. & E. Co. (N. Y.) 169 
 
 Mutual Res. Fund L. Assn. v. Ferrenbach (U. S.) 292 
 
 Mutual Safety Ins. Co. v. Hone (N. Y.) 288 
 
 Nashville, C. & St. L. Ry. Co. v. Miller (Ga.) 125 
 
 National Pro. Assn. v. Cumming (N. Y.) 214 
 
 National Prov. Bk. of Epg. v. Marshall (Eng.) 246 
 
 Nelson v. Narragansett E. L. Co. (R. I.) 54 
 
 V. Plimpton Fireproof Elev. Co. (N. Y.) 230, 301 
 
 Newark Cod Co. v. Upson (Ohio) 28 
 
 Newman, In re (Eng.) 241 
 
 New Orleans, St. L. & C. R. R. Co. v. Burke (Miss.) 86 
 
 New World (The) v. King (U. S.) 95 
 
 New York Rub. Co. v. Rothery (N. Y.) 82 
 
 Nichol v. Thompson (Eng.) 136 
 
 Nickerson v. Wheeler (Mass.) . . 151 
 
 Noonan v. Pardee (Pa.) 199 
 
 Normile v. Wheeling T. Co. (W. Va.) 107 
 
 Norristown v. Moyer (Pa.) .' 125 
 
 Northern Pac. Ry. Co. v. Adams (U. S.) 254 
 
 V. Babcock (U. S.) 347 
 
 Norwood V. Baker (U. S.) 222 
 
 Notara v. Henderson (Eng.) 305 
 
 Nowell V. Roake (Eng.) 209 
 
 Noyes v. Phillips (N. Y.) 234 
 
 Nye V. Merriam (Vt.) 205 
 
 Gates v. Met. St. Ry. Co. (Mo.) 74 
 
 Oelrichs V. Spain (U. S.) 34 
 
 Ogden V. Marshall (N. Y.) 237, 301 
 
 O'Hanlan v. Great West. Ry. Co. (Eng.) 132 
 
 Old Colony R. R. Co. v. Miller (Mass.) ■. . 143 
 
 O'Neill V. James (Mich.) 52 
 
 O'Reillys. New YorkEle.R.R. Co. (N.Y.) 203,218 
 
 Orr V. Churchill (Eng.) 248 
 
 Osbom V. Gillett (Eng.) 176 
 
 V. Leach (N. C.) 97 
 
 V. Lovell (Mich.) 149 
 
 Osgood V. Osgood (N. H.) 279 
 
XXviii TABLE OF CASES. 
 
 Page 
 
 Pacific P. Tel. C. Co. v. Bank of Palo Alto (U. S.) 34 
 
 Packard v. Slack (Vt.) 271 
 
 Paine v. Caswell (Me.) 141 
 
 Pakas V. HoUingshead (N. Y.) 119 
 
 Palmer v. Wick & P. S. S. Co. (Eng.) 161 
 
 Pap6 V. Westacott (Eng.) 296 
 
 Parana, The (Eng.) 310 
 
 Parker v. Eagle F. Ins. Co. (Mass.) 285 
 
 V. Peabody (Vt.) 195 
 
 V. Russell (Mass.) 119 
 
 Parrot v. Knickerbocker I. Co. (N. Y.) 28, 144 
 
 Passinger v. Thorbum (N. Y.) 21, 271 
 
 Patterson v. Boston (Mass.) 134 
 
 V. Marine Nat. Bank (Pa.) 350 
 
 Paul V. Cragnaz (Nev.) 25 
 
 V. Frazier (Mass.) ' 328 
 
 Paulmier v. Erie R. R. Co. (N. J.) 179 
 
 Peake v. Frost (Mass.) 272 
 
 Pearson v. Duane (U. S.) 312, 314 
 
 V. Williams (N. Y.) 252 
 
 Peay v. W. U. Tel. Co. (Ark.) 322 
 
 Peek V. Derry (Eng.) 273 
 
 Pegram v. Stortz (W. Va.) 89 
 
 Pennsylvania R. R. Co. v. Allen (Pa.) 160 
 
 V. Kerr (Pa.) 58 
 
 V. McCloskey (Pa.) 179 
 
 V. Titusville & P. P. R. Co. (Pa.) 302 
 
 Peoria, B. & C. T. Co. v. Vance (111.) 219 
 
 Perkins v. N. Y. C. & H. R. R. R. Co. (N. Y.) 95 
 
 V. Pitman (N. H.) 195 
 
 Perrott v. Shearer (Mich.) 125 
 
 Peters v. Bamhill (S. C.) . . , 281 
 
 V. Johnson (W. Va.) 52 
 
 Peterson t». W. U. Tel. Co. (Minn.) 92, 354 
 
 Philadelphia & R. R. R. Co. v. Derby (U. S.) 312 
 
 Philadelphia Ball Club v. Philadelphia (Pa.) 144 
 
 Phillips V. Coast (Pa.) . ; 211 
 
 V. London & S. W. Ry. Co. (Eng.) 2, 99, 148, 159, 354 
 
 Piper V. Kingsbury (Vt.) 330 
 
 Pitcher v. Livingston (N. Y.) 335 
 
 Pitt V. Donovan (Eng.) 165 
 
 Pittsburg Coal Co. v. Foster (Pa.) 70 
 
 Pittsburg, C. & St. L. Ry. Co. v. Lyon (Pa.) 86 
 
 V. Moore (Ind.) 177 
 
 Playford v. Un. King. E. T. Co. (Eng.) 315 
 
 Plummer v. Pen. Lum. Assn. (Me.) 79 
 
 Pollard V. Lyon (U. S.) 164 
 
 V. Photo. Cop. Co. (Eng.) 169 
 
 Pond V. Harris (Mass.) 36 
 
 Portsmouth Ins. Co. v. Brazee (Ohio) 290 
 
 Postal Tel. Cable Co. v. Lathrop (111.) . 320 
 
 «. Terrell (Ky.) Ill 
 
 Potter V. McPherson (Mo.) 240 
 
 Power V. Harlow (Mich.) 159 
 
 Pratt V. Davis (111.) 158 
 
 Prehn v. Royal Bk. of Liverpool (Eng.) 350 
 
 rrenn v. ±toyai UK. ot Liiverpool 
 Press Pub. Co. v. Monroe {V. S.) 
 
TABLE OP CASES. xxix 
 
 Priestly v. Northern Ind. & C. R. R. Co. (111.) 309 
 
 Primrose v. W. U. Tel. Co. (U. S.) 316, 322, 324 
 
 Pritchard v. Norton (U. S.) . 344 
 
 Pullman Pal. Car Co. v. Adams (Ala.) ....'.'.'.'.'.. 314 
 
 Pye V. British Auto. C. S., Ld. (Eng.) . . . . 237 
 
 Pym V. Great N. Ry. Co. (Eng.) .' .' igo 
 
 QuiNN V. Leatham (Eng.) 14 214 
 
 Radclote's Ex'rs v. The Mayor (N. Y.) 215 
 
 Railroad v. Cabinet Co. (Tenn.) '. 307 
 
 V. Wallace (Tenn.) 137^ I43 
 
 Railroad Co. v. Baron (U. 8.) I79 
 
 V. Jones (U. S.) \ , 74 
 
 «. Lockwood (U. S.) '. 298, 300 
 
 Randall v. Hazelton (Mass.) 205 
 
 Ranger v. Great W. Ry. Co. (Eng.) 240 
 
 Ransom v. N. Y. & E. R. R. Co. (N. Y.) 99, 160 
 
 Rathbone v. N. Y. C. & H. R. R. R. Co. (N. Y.) 304 
 
 Raycroft v. Taintor (Vt.) 214 
 
 Raymond v. Yarrington (Tex.) 214 
 
 Read ». Great E. Ry. Co. (Eng.) 177 
 
 V. Spaulding (N. Y.) 42 
 
 Rearick v. Wilcox (111.) 162 
 
 Redmond v. Am. Mfg. Co. (N. Y.) 133, 193 
 
 Reed v. Davis (Mass.) 88 
 
 . V. W. U. Tel. Co. (Mo.) 324 
 
 Reid V. Fairbanks (Eng.) > 1^6 
 
 Reker v. Worth (N. CO 274 
 
 Reifly v. Jones (Eng.^ 242 
 
 Renfro v. Hughes (Ala.) 186 
 
 Ribich V. Lake Superior Sm. Co. (Mich.) 354 
 
 Richards v. Citizens' Nat. G. Co. (Pa.) 144 
 
 V. Edick (N. Y.) 245, 342 
 
 Richardson v. Mason (N. Y.) 270 
 
 Richmond & D. R. R. Co. v. Elliott (U. S.) 28 
 
 Rider v. Syracuse R. T. Ry. Co. (N. Y.) 74 
 
 Riewe v. McCormick (Neb.) 87 
 
 Ring V. Cohoes (N. Y.) 49 
 
 Ripley v. Mosely, (Me.) 282 
 
 Rdaerts, In re (Eng.) 141 
 
 ®. Roberts (Eng.) 165 
 
 V. White (N. Y.) 236 
 
 Roberson v. Rochester F. B. Co. (N. Y.) 169 
 
 Robinson v. Bland (Eng.) 135 
 
 «. Kime(N. Y.) 88 
 
 V. Superior R. T. Ry. Co. (Wis.) 90 
 
 V. Waupaca (Wis.) 159 
 
 V. W. U. Tel. Co. (Ky.) 109 
 
 Rochester Lan. Co. ■». Stiles & P. Press Co. (N. Y.) T'O 
 
 Rockwood V. Allen (Mass.) 15, 20 
 
 Rodocanachi v. Milbum (Eng.) 303 
 
 Roe V. Jerome (Conn.) * . 345 
 
 Rolin V. Steward (Eng.) 350 
 
 Romaine v. Allen (N. Y.) 188 
 
 Roper V. Johnson (Eng.) 117, 267 
 
XXX TABLE OF CASES. 
 
 Page 
 
 Rose V. Miles (Eng.) 202 
 
 V. Story (Pa.) 195 
 
 Rosenfield v. Express Co. (U. S.) 310 
 
 Rowland's Admrs. v. Shelton (Ala.) 276 
 
 Rudder v. Price (Eng.) 135 
 
 Rundell v. C. G. Transatlantique (U. S.) 176 
 
 Russel V. Palmer (Eng.) 2 
 
 Ryan v. N. Y. C. & H. R. R. R. Co. (N. Y.) 58 
 
 Ryerson v. Chapman (Me.) 36 
 
 St. Bernard v. Kemper (Ohio) 20 
 
 St. Johnsbury & L. C. R. R. Co. v. Hunt (Vt.) 47 
 
 St. Johnsville v. Smith (N. Y.) 221 
 
 St. Louis, A. & R. I. R. R. Co. v. Coultas (111.) 235 
 
 Salem v. Anson (Ore.) 248 
 
 Salisbury v. Western N. C. R. R. Co. (N. C.) 122 
 
 Salladay v. Dodgeville (Wis.) 77 
 
 Sanderson v. Northern Pac. Ry. Co. (Minn.) 108 
 
 Sangamon & M. R. R. Co. v. Henry (111.) 304 
 
 Sargent v. Merrimac (Mass.) 222 
 
 Sauter v. N. Y. C. & H. R. R. R. Co. (N. Y.) 44 
 
 Savannah & C. R. R. Co. v. Callahan (Ga.) 240 
 
 Savile v. Roberts (Eng.) 167 
 
 Sawyer v. Dean (N. Y.) 265 
 
 Sayre v. Sayre (N. J.) 166 
 
 Schaffner v. Ehrman (111.) 351 
 
 Schlitz Brew. Co. v. Compton (111.) . . ' 120 
 
 Schrimpf V. Tennessee Mfg. Co. (Tenn.) 248 
 
 Schuyler v. Curtis (N. Y.) 169 
 
 V. Sylvester (N. J.) 236 
 
 Scott V. Boston & N. O. S. S. Co. (Mass.) 307 
 
 V. Shepherd (Eng.) 43, 155 
 
 Selleck v. Janesville (Wis.) 80, 172 
 
 Seward v. Vera Cruz (Eng.) 178 
 
 Shannon v. Comstock (N. Y.) 341 
 
 Sharp V. Powell (Eng.) 49 
 
 V. United States (U. S.) 221 
 
 Sherman v. Hudson R. R. R. Co. (N. Y.) 306 
 
 u. Rawson (Mass.) 329 
 
 Sherwood v. Chicago & W. M. Ry. Co. (Mich.) 159 
 
 V. Sutton (U. S.) 272 
 
 Shipherd v. Field (111.) 296 
 
 Shipp V. Story (Ga.) 162 
 
 Shippen v. Bowen (U. S.) 272 
 
 Shook V. Peters (Tex.) 89 
 
 Short V. Kalloway (Eng.) 282 
 
 Shute V. Taylor (Mass.) 242 
 
 Sigafus V. Porter (U. S.) 273, 275 
 
 Simmons v. W. U. Tel. Co. (S. C.) 114 
 
 Simon v. Goodyear Met. R. S. Co. (U. S.) 224 
 
 Simone v. Rhode Island (R. I.) 113 
 
 Simpson v. Griflfin (N. Y.) 283 
 
 Single V. Schneider (Wis.) 127 
 
 Skinn v. Reutter (Mich.) 53 
 
 Slater v. Mexican N. R. R. Co. (U. S.) .' ! . . . .' . 347 
 
 Slingerland v. International Con. Co. (N. Y.) ........ 83 
 
 Sloan V. Edwards (Md.) 47 
 
TABLE OF CASES. XXXI 
 
 Page 
 
 Sloane «. Southern Cal. Ry. Co. (Cal.) Ill 
 
 Smith V. Bergengren (Mass.) 251 
 
 V. Berry (Me.) 261 
 
 V. Belles (U. S.) 273 
 
 V. Compton (Eng.) 282 
 
 V. Green (Eng.) 271 
 
 V. Griffith (N. Y.) 128, 129 
 
 V. Holcomb (Mass.) 160 
 
 V. Judkins gj. H.) 195 
 
 V. Lumber Co. (N. C.) 255 
 
 V. Peat (Eng.) 333 
 
 V. Postal Tel. Cable Co. (Mass.) 113 
 
 V. St. Joseph (Mo.) 171, 172 
 
 V. Sherman (Mass.) 327 
 
 V. Werkheiser (Mich.) 275 
 
 Smith's Amrx. v. Middleton (Ky.) 92 
 
 Smitha v. Gentry (Ky.) 205 
 
 Smithwick v. Ward (N. C.) 89 
 
 Snell V. Del. Ins. Co. (U. S.) 289 
 
 Snow V. Carpenter (Vt.) 86 
 
 South African Ter., Ld., V. Wallington (Eng.) 353 
 
 Southard v. Rexford (N. Y.) 329 
 
 Southern BeU T. & T. Co. v. Cassin (Ga.) 177 
 
 Southern Exp. Co. v. Owens (Ala.) 133, 254 
 
 Southern Pac. R. R. Co. v. S. F. Savings Union (Cal.) 221 
 
 Southern Ry. Co. v. Covenia (Ga.) 173 
 
 South Park Com'rs v. Dunlevy (111.) 143 
 
 Sowers V. Sowers (N. C.) 89 
 
 Spade V. Lynn & B. R. R. Co. (Mass.) 20, 113 
 
 Speake v. Hughes (Eng.) .......' 165 
 
 Sperier D. Ott (La.) Ill 
 
 Spooner v. Holmes (Mass.) 1 83 
 
 Spring V. Haskell (Mass.) 304 
 
 Squire v. W. U. Tel. Co. (Mass.) 45, 319 
 
 Staats V. Ten Eyck's Exrs. (N. Y.) 336 
 
 Stacy V. Portland Pub. Co. (Me.) •. . 93 
 
 Standard Oil Co. v. Wakefield (Va.) 52 
 
 Stanford v. McGill (N. D.) 267 
 
 Stanley v. Powell (Eng.) 13 
 
 Startup V. Cortazzi (Eng.) 263 
 
 Steams v. Sampson (Me.) 163 
 
 Stebbins v. Pahner (Mass.) 327 
 
 Stevens v. Low (N. Y.) 184 
 
 i;. Dudley (Vt.) 49,61 
 
 Stewart v. Drake (N. J.) 338 
 
 1). Maddox (Ind.) 89 
 
 V. United E. L. & P. Co. (Md.) 177 
 
 Stickney v. Allen (Mass.) 132 
 
 Stillwell V. Staples (N. Y.) 286 
 
 Stimson v. Famham (Eng.) 84 
 
 Stocking V. Sage (Conn.) 296 
 
 Stokes V. Cont. Trust Co. (N. Y.) 262 
 
 Stone V. Boston & A. R. R. Co. (Mass.) 59 
 
 Storer v. Eaton (Me.) 295 
 
 Stork V. Philadelphia (Pa.) 220 
 
 Story V. New York Ele. R. R. Co. (N. Y.) 204 
 
 Stowe V. Buttrick (Mass.) 229 
 
XXXU TABLE OF CASES. 
 
 Stranahan Bros. C. Co. v. Coit (Ohio) 89 
 
 Strauss V. Mutual Res. F. Life Aseo. (N. C.) 291 
 
 Streeper v. Williams (Pa.) 244 
 
 Strickland v. Williams (Eng.) 243 
 
 Strohm V. N. Y., L. E. & W. R. R. Co. (N. Y.) 120 
 
 Stroms B. A. Bolag v. Hutchinson (Eng.) 70 
 
 Strong V. Mfrs. Ins. Co. (Majss.) 287 
 
 Stull i;. Beddes (Neb.) 236 
 
 Sussex Co. Mut. Ins. Co. v. Woodruff (N. J.) 287 
 
 Sutherland v. Wyer (Me.) 78, 256 
 
 Suydam v. Jenkins (N. Y.) 188, 192 
 
 Svendsen v. State Bank of Duluth (Minn.) 281 
 
 Swan D. W. Tel. Co. (U. S.) 319 
 
 Sweetland v. Chicago & G. T. R. R. Co. (Mich.) 178 
 
 Swift V. Broyles (Ga.) 203 
 
 V. Dickerman (Conn.) 107 
 
 V. Newport News (Va.) 85, 219 
 
 V. Powell (Ga.) ' 242 
 
 Sun Printing and Pub. Assn. v. Moore (U. S.) 249 
 
 Synge v. Synge (Eng.) 266 
 
 Tape Vale Rt. v. Am. Soc. Ry. Servants (Eng.) 213 
 
 Taft I). Travis (Mass.) 264 
 
 Tarleton v. McGawley (Eng.) 47 
 
 Tayloe v. Sandiford (U. S.) 238 
 
 Taylor v. Morgan (Pa.) 184 
 
 Teller v. Bay & R. Dredg. Co. (Cal.) 200 
 
 Temperton v. Russell (Eng.) 212 
 
 Tempest v. Kilner (Eng.) 261 
 
 Tennessee Mfg. Co. v. James (Tenn.) 247 
 
 Terminal Co. v. Jacobs (Tenn.) 202, 220 
 
 Terry v. Hutchinson (Eng.) 173, 174 
 
 Terwilliger v. Wands (N. Y.) 106, 107 
 
 Tewes v. North German L. S. S. Co. (N. Y.) 254 
 
 Thacker Coal Co. v. Burke (W. Va.) 214 
 
 Thayer v. McManis (Pa.) 184 
 
 D. Murray (N. Y.) 183 
 
 Thomas, The Joseph B. (U. S.) 49 
 
 «. Cauldwell (N. Y.) 269 
 
 c. Winchester (N. Y.) 52 
 
 Thomas B. & W. Mfg. Co. v. W., St. L. & P. Ry. Co. (Wis.) 7, 22, 70, 78 
 
 Thompson v. Boston & Me. R. R. Co. (N. H.) 141 
 
 V. Hudson (Eng.) 239 
 
 «. Rose(N. Y.) 234 
 
 V. W. U. Tel. Co. (Wis.) 319 
 
 Thurman v. W. U. Tel. Co. (Ky.) Ill 
 
 Thurston v. Hancock (Mass.) 198 
 
 Tilly V. Hudson R. R. R. Co. (N. Y.) 180 
 
 Tobin V. Harford (Eng.) 290 
 
 Todd V. Gamble (N. Y.) 25, 266 
 
 Tode V. Gross (N. Y.) 244 
 
 Tone V. Wilson (111.) 336 
 
 Torry v. Black (N. Y.) 126 
 
 Townsend v. Hughes (Eng.) 2 
 
 Trammell v. Vaughn (Mo.) 328 
 
 Trenton M. L. &T. I. Co. v. Johnson (N. J.) 291 
 
 .Trinity Church v. Higgins (N. Y.) 277 
 
TABLE OP CASES. XXXIU 
 
 Page 
 
 Tripp V. Thomas (EneJ 164 
 
 True V. International T. Co. (Me.) 319 
 
 Trull V. Granger (N. Y.) 332 
 
 Tufts V. Adams (Mass.) 339 
 
 V. Grewer (Me.) 269 
 
 Tully V. Harloe (Cal.) 191 
 
 Tunbridge Wells Dippers Case (Eng.) 205 
 
 Tunnicliffei). Bay QtiesC. R. R. Co. (Mich.) 28 
 
 Tuttle ». Atlantic aty R. R. Co. (N. J.) Ill 
 
 V. White (Mich.) 192 
 
 Tyler v. Bailey (111.) 228 
 
 «. Moody (Ky.) 271 
 
 V. Salley (Me.) 328 
 
 ULUtfAN V. Chicago & N. W. Ry. Co. (Wis.) 311 
 
 Underhill v. Agawam M. F. I. Co. (Mass.) 284 
 
 Union Bank v. Blanchard (N. H.) 231 
 
 Union Inst, for Savings v. Boston (Mass.) 141 
 
 Union Stock Yds. Co. v. Chicago, B. & Q. R. R. Co. (U. S.) . . . . 151 
 
 United Merthyr Collieries Co. (Eng.) 186 
 
 United Press v. United Press Co. (N. Y.) 82 
 
 United States v. Behan (U. S.) 225, 226 
 
 V. St. Anthony R. R. Co. (U. S.) 192 
 
 i>. Smith (U. S.) 20 
 
 United States Exp. Co. v. Haines (111.) 309 
 
 United States T. Co. v. O'Brien (N. Y.) 62 
 
 V. Wenger (Pa.) 319 
 
 Usher B. Noble (EngO 289 
 
 Valente v. Weinburg (Conn.) 229 
 
 Valentine v. Wheeler (Mass.) 279 
 
 Van Brocklen v. SmealUe (N. Y.) 265 
 
 Vandenburgh v. Truax (N. Y.) 51 
 
 Vanderpool v. Richardson (Mich.) 103 
 
 Vandervoort v. Gould (N. Y.) 209 
 
 Van Fossen v. Clark (la.) 351 
 
 Van Rensselaer v. Jewett (N. Y.) 142 
 
 Van Winkle v. WiUdns (Ga.) 66 
 
 Vicksburg & M. R. R. Co. v. Putnam (U. S.) 159 
 
 Victorian Ry. Com'rs v. Cotiltas (Eng.) 109 
 
 Vogel i;. McAuliffe (R. I.) 108 
 
 Vogt V. Schienebeck (Wis.) 266 
 
 .Voltz «. Blackman (N. Y.) 161 
 
 Vosbuig V. Putney (Wis.) 53 
 
 Wabash, St. L. & P. Ry. Co. v. Campbell (HI.) 305 
 
 D. Rector (111.) \^„\A^ o?S 
 
 Wadsworth v. W. U. Tel. Co. (Tenn.) 103, 109, 322 
 
 Walker v. Constable (Eng.) 136 
 
 V. Cronin (Mass.) 212 
 
 V. Smith (U. S.) 20 
 
 Wall V. City of London R. P. Co. (Eng.) 4 
 
 Wallace D. Berdell (N. Y.) 211 
 
 V. Penn. R. R. Co. (Pa.) 31 
 
 Wallingford v. Kaiser (N. Y.) 187 
 
 Wallis V. Smith (Eng.) 242 
 
 Walsh V. Fisher (Wis.) 230, 244 
 
 c 
 
XXXIV TABLE OF CASES. 
 
 Ward V. Hudson R. Build. Co. (N. Y.) 247 
 
 Ward's C. & P. L. Co. v. Elkins (Mich.) 301 
 
 Washington Mills Mfg. Co. v. Weymouth Ins. Co. (Mass.) 285 
 
 Waterman v. Chicago & A. R. R. Co. (Wis.) 56, 160 
 
 Waters v. Monarch F. & L. Ass. Co. (Eng.) 286 
 
 Watkins v. Kaolin Mfg. Co. (N. C.) 108, 115 
 
 Watriss V. Cambridge Nat. Bank (Mass.) 333 
 
 Watson V. Dilts (la.) 115 
 
 V. Moore (Mass.) 162 
 
 V. Watson (Mich.) 328 
 
 Watt V. Watt (Eng.) 355 
 
 Watts V. Camors (U. S.) 241 
 
 Wayman v. Southard (U. S.) 344 
 
 Webb V. Atlantic C. L. R. R. Co. (S. C.) 86 
 
 V. Portland Mfg. Co. (U. S.) 19 
 
 Weeks v. Holmes (Mass.) .229 
 
 Wegner ■;;. Second Ward Sav. Bank (Wis.) 144 
 
 Wehle V. Haviland (N. Y.) 185 
 
 Weick V. Dougherty (Ky.) 28, 355 
 
 Welch V. Anderson (Eng.) 63, 65 
 
 Wells V. Nat. Life Assn. of Hartford (U. S.) 25, 227 
 
 Wesson v. Washburn Iron Co. (Mass.) 200 
 
 Western Mfg. Co. v. The Guiding Star (U. S.) 305 
 
 Western Twine Co. v. Wright (S. D.) 271 
 
 Western Union Tel. Co. v. Barlow (Fla.) 36 
 
 V. Church (Neb.) 322 
 
 V. Crall (Kan.) 321 
 
 V. Eubanks (Ky.) 324 
 
 V. Ferguson (Ind.) 107, 322 
 
 V. Hall (U. S.) 27, 321 
 
 V. Henderson (Ala.) . ... 323 
 
 V. Lacer (Ky.) 346 
 
 V. North P. & P. Co. (m.) 319 
 
 17. Nye & S. Co. (Neb.) 319 
 
 V. Reid (Ky.) 323 
 
 V. Rogers (Miss.) 109,322 
 
 V. Shenep (Ark.) 112 
 
 V. Wells (Fla.) 108 
 
 Westfield tJ. Mayo (Mass.) 36,282 
 
 West Leigh Col. Co., Ld., v. Tunnicliffe (Eng.) . . 119 
 
 West Mahanoy v. Watson (Pa.) 56 
 
 Weston V. Boston & Me. R. R. Co. (Mass.) 309 
 
 V. Grand Trunk Ry. Co. (Me.) 306 
 
 Weston Paper Co. v. Pope (Ind.) 203 
 
 West Side El. Ry. Co. v. Stickney (111.) 219 
 
 Whipple V. Wanskuck Co. (R. I.) 198 
 
 White V. Miller (N. Y.) 140, 143 
 
 V. NelUs (N. Y.) 60, 174 
 
 V. Yawkey (Ala.) 186 
 
 Whiting V. Price (Mass.) . . 272 
 
 Whitney v. Allaire (N. Y.) 272 
 
 Wichita & W. R. R. Co. v. Beebe (Kan.) 119 
 
 Wicker v. Hoppock (U. S.) 277 
 
 Wiest V. Electric Tract. Co. (Pa.) . . . 179 
 
 Wiggins 1). Pender (N. C.) 36, 336 
 
 Wilcutt V. DriscoU (Mass.) . . ' 213 
 
 Wilkinson v. Downton (Eng.) . . . . 115 
 
TABLE OF CASES. XXXV 
 
 Page 
 
 Wilkinson v. Drew (Me.) . . . ,. 356 
 
 V. Feiree (Pa.) '. ! ! ! ! 276 
 
 Williams v. Archer (Eng.) 190 
 
 V. Carolina & W. R. R. Co. (N. C.) '.'.'.'.'.'. 65 
 
 V. Esling (Pa.) 196 
 
 V. Hays (N. Y.) 14 
 
 «. Hill (N. Y.) . . . : 165 
 
 V. Mostym (Eng.) . 84 
 
 V. Vanderbilt (N. Y.) 51^ 313 
 
 V. Woods (Md.) ' 261 
 
 Wilson V. Brett (Eng.) 95 
 
 V. Lancashire & Y. Ry. Co. (Eng.) 306 
 
 V. Newport Dock Co. (Eng.) 67 
 
 V. Noonan (Wis.) . 161 
 
 V. Vaughn (U. S.) . . 93 
 
 Winchester v. Craig (Mich.) 127, 149 
 
 WindmuUer v. Pope (N. Y.) . . 267 
 
 Winslow V. Lane (Me.) 28 
 
 Winston Cig. M. Co. v. Wells- Whitehead Tob. Co. (N. C.) 26 
 
 Wolcott V. Mount (N. J.) . 26 
 
 Wolf V. Studebaker (Pa.) ... 76, 79 
 
 Wood V. Snider (N. Y.) 152 
 
 V. The State (Md.) ' 236 
 
 V. Waud (Eng.) ... 83 
 
 Wooden v. W. N. Y. & P. R. R. Co. (N. Y.) 347 
 
 Woodger v. Great W. Ry. Co. (Eng.) 308 
 
 Woodhull V. Rosenthal (N. Y.) 211 
 
 Woodward v. Powers (Mass.) 270 
 
 Wooten V. Railroad (N. C.) . . ... 55 
 
 Worthington v. Gwin (Ala.) 226 
 
 Wright V. Bank of the Metropolis (N. Y.) 188 
 
 V. Mulvaney (Wis.) . 28 
 
 Wrynn v. Downey (R. L) 329 
 
 Wyman v. Leavitt (Me.) 109 
 
 Yates v. N. Y. C. & H. R. R. R. Co. (N. Y.) 93, 94 
 
 Yeager v. Weaver (Pa.) . . 332 
 
 Year Book, 30 & 31 Edw. L p. 106 358 
 
 Yenner v. Hammond (Wis.) 242 
 
 Yorton v. Mil., L. S. & W. Ry. Co. (Wis.) 79 
 
 Yoimg V. Harrison (Ga.) 222 
 
 Yundt V. Hartrunft (111.) 175 
 
ELEMENTS 
 
 OF 
 
 THE LAW OF DAMAGES. 
 
 INTRODUCTION. 
 
 The modern development of the law has been marked by a 
 growing attention to the subject of Damages. Two generations 
 ago, there existed but a single text-book on this title of the law ; 
 in the United States there was none. Since then, not only have 
 a number of systematic treatises made their appearance, but the 
 Reports, with their constantly increasing harvest of decisions, 
 have proved that for some inherent reason this branch of the 
 law of redress commands a position not previously held by it. 
 Its introduction into the courses of law schools shows that, be- 
 sides its importance in actual practice, it attracts much notice 
 as a subject deserving the attention of students. 
 
 The explanation of the fact which lies on the surface is, that 
 the body of rules laid down by the courts as to damages is of 
 comparatively recent growth. But a question of considerable 
 interest is, Are the causes which have produced these rules of a 
 permanent character, or is their growth merely a transitory phe- 
 nomenon in the development of the law ? The answer may serve 
 to throw some light upon the principles underlying the whole 
 subject. It seems to be closely connected with the division in 
 our system between law and fact, and the separation of the func- 
 tions of court and jury. 
 
 Originally the jury, now a tribunal of fact, summoned to hear 
 the testimony offered by the parties, to decide upon its credi- 
 bility, and, under the guidance of the court, to find the facts in 
 
 1 
 
2 ELEMENTS OF THE LAW OF DAMAGES. 
 
 the case necessary to its correct decision, had no such function. 
 Trial by jurors was resorted to because they were persons sup- 
 posed to be already cognizant of the matter in dispute,* and they 
 seem to have been in consequence clothed with a practically ab- 
 solute power as to the amount of compensation. Authority to 
 determine the measure of compensation has been, in process of 
 time, for the most part slowly, transferred to the courts, the 
 greater part of the change having been accomplished within a 
 Very modern period. In a comparatively recent case ' they are 
 still said to be "chancellors;" in another" they are said to be 
 "proper judges" of what the damages, are; and as late as the 
 time of Lord Mansfield we find counsel still insisting that " the 
 court cannot measure the ground on which the jury find dam- 
 ages that may be thought large." * 
 
 Strange as this early arbitrarypower of the jury now seems, it 
 is not difficult to account for it when we reflect that all our early 
 civil law was a law of torts.° When trial by jury was introduced, 
 the common form of action for the redress of wrongs was tres- 
 pass; the whole subject of contract was yet to come into exist- 
 ence, and as the machinery of modem proof had not been 
 invented, there was no other way of ascertaining what damage 
 had been done than that of asking the jury. Its answer was final. 
 A considerable portion of this arbitrary power remains in its 
 hands even to-day; for while, in the development of contract, 
 the rules of recovery have become more and more matter of law, 
 the jury in tort still retains, within certain limits, its ancient pre- 
 rogative, and in libel, slander, assault and battery, and all per- 
 sonal actions the damages are said to be "at large." • 
 
 ' 1 Reeves' Eng. Law, 328; 2 id. 270. 
 
 ' Sir Baptist Hixt's case, 2 Rol. Abr. 703, p. 15. 
 
 " Ld. Townsend v. Hughes, 2 Mod. 150. 
 
 * Gilbert v. Berkinshaw, Lofft, 771 ; Russel v. Palmer, 2 Wils. 325. 
 
 • 1 Pollock and Maitland's Hist, of Eng. Law, 15, 21, 34. 
 
 ' In Lord Townsend v. Hughes, above, a case of scandalum magnatum, 
 in which the judges of the Common Pleas refused to set aside a verdict of 
 £4,000 as excessive, one of them mentions as a palpable absurdity the idea 
 of giving a new trial for scandalously inadequate damages; in such a case 
 at the present day the verdict is not allowed to stand. Phillips v. L. & S. W. 
 Ry. Co., 5 Q. B. D. 78. 
 
INTRODUCTION. 3 
 
 As long as the jury performed its early function, there could 
 be no law of damages properly so called. Each verdict stood by 
 itself, based on facts which were perhaps never even brought to 
 the knowledge of the court. A law of damages must consist of 
 uniform rules applicable to various classes of cases; and such 
 rules cannot be uniform unless the court is compelled to lay 
 them down and the jury is compelled to apply them. For the 
 development of such a system it was necessary, first, that the 
 court should obtain control over the machinery of proof; second, 
 that it should find means of making the verdict conform to a 
 standard of damages derived from legal principles; third, that 
 these legal principles, once enunciated, should be binding upon 
 itself. In modern procedure all these requirements are met. 
 
 The essential peculiarities of this procedure are, that the fu-rttfs 
 have become a special tribunal to decide questions of fact, not 
 from their own knowledge, but upon the testimony of witnesses; 
 that they may consider only such testimony as the court, in ac- 
 cordance with fixed rules of law, decides to be admissible ; that 
 they find the facts in accordance with certain rules laid down by 
 the court; that the parties are entitled at every stage of a trial to 
 explicit decisions by the court upon the admissibility of evidence, 
 and at its close to definite instructions to the jury upon propo- 
 sitions of law offered by them ; and finally, that upon review or 
 appeal the correctness of some one or more of these decisions or 
 instructions, or of the conformity of the verdict with them, de- 
 termines the vital question whether the verdict shall stand or 
 whether the case shall be tried anew. 
 
 In the language of Shaw, C. J.,* "it is the duty of the judge to 
 instruct and direct the jury, authoritatively, upon such questions 
 of law as may seem to him to be material for the jury to under- 
 stand and apply in the issue to be tried ; and he may also be re- 
 quired so to instruct upon any pertinent question of law within 
 the issue, upon which either party may request him to instruct. 
 ... If such instruction be either given or refused, it is the duty 
 of the judge to state it in a bill of exceptions, so that it may be 
 placed on the record ; and if the verdict is against the party who 
 took the exception, and it appears, upon a revision of the point of 
 
 ' Com. V. Porter, 10 Met. 263, 267. 
 
4 ELEMENTS OF THE LAW OF DAMAGES. 
 
 law, that the decision is incorrect, either in giving or refusing such 
 instruction, the verdict is set aside as a matter of course.'' The 
 same statement may be made as to rulings upon evidence in the 
 course of a trial, whenever it can be seen that, had the evidence 
 excluded been admitted, or had the evidence admitted been ex- 
 cluded, the resulting verdict might have been different.' 
 
 The effect of this system is to produce a continuously increasing 
 body of rules, and in no branch of the law is this more obvious 
 than in that which affects such a large proportion of the verdicts 
 rendered by juries, — the measure of damages. The means by 
 which these rules are produced, and the reason they remain 
 fixed in the law can best be seen by one or two examples. 
 
 The general principle in all actions for breach of contract is 
 that the verdict must give the plaintiff in damages the difPer- 
 ence between what he would have had, if the contract had been 
 performed, and what he actually has received.^ The plaintiff, for 
 instance, has been deprived of the use of an article ; he is entitled 
 to the value of the use of it. But a case arises involving a some- 
 what novel fact. The loss of this use entails a secondary loss, — 
 the loss of pi-ofits. Can he recover these ? On the trial, the evi- 
 dence of the profits he might have made, had he had the article, 
 is admitted ; the case is left generally to the jury, and a verdict is 
 found which includes the conjectured profits. A new trial is ap- 
 plied for, on the ground of misdirection, and the question is pre- 
 sented for argument. What should the judge have charged as to 
 consequential damages, — that is, damages not directly resulting 
 from the act complained of, but still a consequence of it ? The 
 
 ' So strict is this rule that it has been held that even if the improper 
 evidence was not noticed by counsel on either side in addressing the jury, 
 nor by the court in instructing them, still the verdict cannot stand, for 
 once admitted against the objection of counsel, the jury had a right to 
 regard it; i. e., the verdict may have been affected by it. Brown v. 
 Cummings, 7 All. 507; Maguii« v. Middlesex R. R. Co., 115 Mass. 239. 
 The evil effect of this rule in promoting new trials and litigation is thor- 
 oughly explained by J. H. Wigmore in his Treatise on Evidence (Vol. I. 
 § 21) ; it is a late growth, purely technical, and utterly unnecessary. In 
 England it has been swept away as an abuse, by statute ; but it unfor- 
 tunately still seems to exist in full vigor in this country. 
 
 ' Wall V. City of London R. P. Co., L. R. 9 Q. B. 249. 
 
INTKODUCTION. 5 
 
 result reached is that for breach of contract the damages should 
 be "such as may fairly and reasonably be considered either aris- 
 ing naturally — that is, according to the usual course of things — 
 from such breach of contract itself, or such as may reasonably 
 be supposed to have been in the contemplation of both parties at 
 the time they made the contract, as the probable result of the 
 breach of it ; " that the profits claimed would not come within 
 either branch of this rule ; that the judge ought to have told the 
 jury so, and that there must therefore be a new trial.' 
 
 The first result of this case is, that a new rule is added to the 
 body of rules relating to contracts, which does not merely decide 
 this particular case, but which the court can be required to 
 state to the jury in all future cases in which consequential 
 damages are claimed. This rule, never before explicitly laid 
 down, becomes an indispensable guide in cases of contract, and 
 the foundation of the whole law of consequential damages. 
 
 In another case, the allowance of profits is considered from 
 another point of view. Proof is offered of what might have been 
 earned by the use of an engine which has not been delivered. 
 This is held not to be the proper measure of damages, and on 
 appeal this view is sustained, on the ground that damages "must 
 be certain, both in their nature and in respect to the cause from 
 which they proceed." In New York, and all the various juris- 
 dictions which follow this decision, the rule of Certainty is added 
 to the rule in Hadley v. Baxendale, and to the fundamental rule 
 that the plaintiff is entitled to be put by the verdict in the position 
 he would have occupied, had the contract not been broken.' 
 
 In the law of sales, the general rule has been established for a 
 long time, that when the seller fails to deliver, the buyer recovers 
 the difference between the contract price and the market value 
 of the article sold, at the place of delivery, i A case arises in which 
 there is no market value at the place of delivery. A new rule is 
 formulated to cover such cases, and is added as a qualification, 
 for future cases of the kind, of the general rule.' 
 
 Questions such as these, grovnng out of the application of 
 
 ' Hadley v. Baxendale, 9 Ex. 341. 
 
 ' Griffin V. Colver, 16 N. Y. 489, 495. 
 
 ' Grand Tower Co, v. PhiUipB, 23 Wall, 471. 
 
6 ELEMENTS OF THE LAW OF DAMAGES. 
 
 some existing rule to new states of facts, have arisen, and have 
 been presented to the courts in the form of requests for instruc- 
 tions to the jury, or offers of, or objections to, proof; the courts 
 have been obliged to pass upon them, and the answers, embodied 
 in a great array of cases, formulate modifications or qualifications 
 of the rule applicable to various states of fact. If we turn our 
 attention to invasions of property, or personal rights, we shall 
 find the same process going on, — a rule evolved by the applica- 
 tion of some admitted principle to a new state of facts, or to an 
 old state of facts looked at from a new point of view, adopted 
 by the courts as a rule of law, and therefore added to the body of 
 rules already in existence as binding upon juries and courts, an 
 erroneous statement of which will result in a mistrial. In this 
 way the consideration of the subject of exemplary damages 
 produces one set of rules, that of interest another, avoidable 
 consequences a third. 
 
 The germ of a rule may sometimes be seen where no rule has 
 yet been reached. It is a general rule of law that the plaintiff 
 cannot recover for damages caused by an injury, if he might, by 
 reasonable care or expense, have avoided them, and that he may 
 hold the defendant for reasonable expenses incurred in avoiding 
 them. In Ellis v. Hilton,' an action for injury to a horse, in 
 which the plaintiff was allowed to recover, in addition to the 
 value of the horse, the expenses of an attempted but unsuccessful 
 cure, after saying that such expenses must be reasonable, the 
 court goes on, "No one would be justified under any circum- 
 stances in expending more than the animal was worth in attempt- 
 ing a cure." The headnote lays it down as a proposition of law, 
 that in such a case the recovery "can never exceed in amount 
 the value of the animal." It requires but a slight stretch of the 
 imagination to make it an actual rule of law. A case arises in 
 which the plaintiff has run up a bill for the expenses of cure in 
 excess of the value. The defendant requests that the jury be 
 instructed that the measure of damages on this head cannot 
 exceed the value. The judge, at the trial, may refuse the request 
 and simply give the jury the existing general rule, — that such 
 expenses must be reasonable. This leaves it to the jury to 
 » 78 Mich. 150. 
 
INTRODUCTION. 7 
 
 decide, as a matter of fact, whether an expense in excess of the 
 value is reasonable, and if their verdict stands, the law remains 
 as at present. But if the verdict is for a sum in excess of the 
 value, and a proper exception has been taken to the refusal of 
 the instruction prayed for, the question will be presented on 
 appeal, whether it is or is not a rule of law that the cost cannot 
 exceed the value. If a new trial is granted on this ground, the 
 ruUng suggested will become a matter of right in future trials. 
 The principle, if sound, is obviously involved in the rule of reason- 
 ableness, which again is involved in the rule of avoidable con- 
 sequences. Once explicitly laid down, however, in this way, it is 
 a new rule, expressly added to the substance of the law.' 
 
 As society never remains in a state of equilibrium, but is 
 subject to a constant law of change, which is from time to time 
 modifying its customs and habits, and bringing up for the con- 
 sideration of the courts novel states of fact, and, moreover, as 
 we are ourselves continually modifying the law by legislation, 
 every generation sees- th& addition of new rules. The introduc- 
 tion of the Telegraph has necessitated a revision of the law of 
 damages, so far as it is concerned with the very peculiar con- 
 tract which this invention has brought in its train. The statute 
 known in England as Lord Campbell's Act has produced the 
 whole body of rules relating to death by wrongful act. This 
 same process goes on in every branch of the law; but it is, 
 perhaps, more noticeable in the law of Damages than in some 
 others, because here very nearly the whole process of evolution has 
 been compressed within what is for the law a very brief period. 
 
 Within this same period the effect of another and different 
 process must be noticed. The abolition of the common-law 
 forms of action, and the simplification of procedure, have had 
 the effect of brushing away a number of purely technical rules 
 which formerly made the recovery depend in many cases upon 
 questions of pleading; and the effect of this has been to make 
 the measure of recovery conform more and more to the real 
 
 * Cf. Thomas B, & W. Mfg. Co. v. Wabash, St. L. & P. Ry. Co., 62 
 Wis. 642, where it is decided that if the expense of repairing a machine 
 would equal its value the rule of avoidable consequences does not apply; 
 the precise form in which the question was presented does not appear. 
 
8 ELEMENTS OF THE LAW OF DAMAGES. 
 
 nature and extent of the redress required. Consequently, while 
 the general result has been to produce a very considerable 
 number of rules, it has also been to throw into greater reUef 
 than before the general principles which underlie the whole 
 subject and give Ufe and meaning to the rules themselves. 
 
 Enough has been said to account for the steady growth of the 
 law of damages. The effect of simphfying procedure has not 
 been to arrest the increase of the volume of the law. This must 
 continue as long as the system just described exists. But it has 
 greatly diminished the technicality of the rules. Generally 
 speaking, the measure of damages is no longer affected by the 
 fact that the declaration is laid in debt or assumpsit, in trover 
 or trespass. The rules, though they tend to increase in number, 
 tend also, when viewed as a whole, to present a more and more 
 rational and intelligible system. 
 
 The law of damages may be regarded as in part made up of 
 these rules, and as in part consisting simply of a discretion in the 
 jury in some cases of tort to give such damages as they may see 
 fit. While the whole domain of contract is governed by rules 
 capable of being stated in more or less expUcit terms, and the 
 statement of which can therefore be required on the trial, the 
 control of the court over the jury in tort is very much less, though 
 the tendency of modern decisions is to extend this control in 
 every direction, and, consequently, to assimilate the measure of 
 recovery in both great divisions, so far as a common measure is in 
 the nature of things appUcable. As will be explained, however, 
 there are inherent differences between tort and contract, which 
 will probably forever prevent their being entirely assimilated. 
 
 The rules, wherever they exist, being capable of statement in 
 an exact form (for otherwise they could not be given to a jury), 
 may be readily made into a code of damages, and such codes 
 have been introduced in one or two jurisdictions in this country 
 by statute. The effect of this codification in simplifying the law 
 has not been marked, for wherever the rules ihave been well 
 stated, they have been either taken bodily from the decisions, or 
 else have been the result of that collation of authorities which 
 is a regular part of the ordinary duty of the judiciary, and is 
 usually, at the present day, done better by judges than by legis- 
 
INTRODUCTION. 9 
 
 lators. Nor does the enactment of a rule of damages in the 
 form of a law bring to an end the formation of new rules from 
 it by the courts; whether a rule once stated remains a part of 
 the common law or becomes a statute, it must still be interpreted 
 and appUed in the light of new facts as they arise. 
 
 The summary given in the present volume is not intended as 
 a suggestion for a code, but as a convenient form of exhibiting 
 in a small compass the general scheme of this branch of the law, 
 and the relation of its parts to one another. The text is designed 
 to explain the reasons which have led to the adoption of the rule 
 in each case, and the illustrations taken from the reports are 
 instances of the working of the rule in practice. 
 
 With regard to the order of arrangement adopted, it has not 
 been found advisable to alter very much that usually followed 
 by the writers of treatises on Damages. The law is only in part 
 logical, and if, for the sake of system, we depart very far from 
 the path of its actual growth, we are continually in danger of 
 increasing rather than diminishing the difficulties which em- 
 barrass its study. 
 
 Part I. deals with principles and rules of a general character 
 affecting the measure and proof of damages ; Part II. deals with 
 the rules governing in particular classes of actions. Here the 
 order is in a measure controlled by the fact that it is not primarily 
 questions of liability which are considered, but the nature and 
 extent of injuries, and the rules for measuring the compensation 
 awarded for them by law. Now, it will be found that so far 
 as actual injury is concerned, an act always has different con- 
 sequences according as it affects, or does not affect, the person. 
 In all cases of personal injury, for example, recovery may be had 
 for pain, and loss of earning capacity. In cases involving 
 property rights, no such question can usually arise. This line 
 of division cannot be lost sight of. Neither can that between 
 Tort and Contract. 
 
 On the whole, it has been deemed most conducive to a clear 
 comprehension of the subject, to make the division between 
 Tort and Contract the basis of classification, and under the 
 first head to begin with injuries to the person and personal rights, 
 to pass on to cases where injury to property comes into view 
 
10 ELEMENTS OP THE LAW OF DAMAGES. 
 
 (e. g., malicious proseeution), considering under th'e first head 
 cases where the right infringed is personal, but the resulting 
 injury is pecuniary (e. g., actions founded upon loss of service 
 of a child, etc.). At the next step injuries to personal property 
 and real estate are reached, where, in the absence of evil motivej 
 the damages are capable of exact pecuniary measure. 
 
 Having now passed out of the range of tort, and entered upon 
 that of contract, a region is arrived at where the measure of 
 damages is, as far as may be, a matter of pecuniary calculation; 
 and under this head contracts relating to person and personal 
 property are first taken up, — Contracts of Service, Sales, 
 Negotiable Paper, Indemnity, Insurance, Warranty, and 
 Agency. To Contract also belong the rules governing Liqui- 
 dated Damages. 
 
 This survey made, it appears that no place has been assigned 
 to actions for breach of contracts relating to Real Estate, for 
 breach of promise, actions against telegraph companies, nor to 
 actions against carriers. These are all somewhat exceptional 
 and are considered by themselves. In a treatise dealing only 
 with general principles it has not been thought best to discuss 
 statutes, except such as are in general operation in all juris- 
 dictions, e. g., the Eminent Domain statutes, and those giving 
 a remedy for death by wrongful act. Probably few of those at 
 all conversant with the result will question that these legislative 
 interferences with the ordinary principles of damages have been 
 attended with results much to be regretted. Had a right of 
 action been given in all cases, leaving the courts to determine 
 the measure of recovery in accordance vsith the general princi- 
 ples of law, a vast amount of wasteful and unnecessary litiga- 
 tion, turning mainly upon the phraseology of the statutes, would 
 have been avoided. So far, in fact, has this gone that a tendency 
 to a reaction may now be seen, as in the extension in many States 
 of the early remedy under the Eminent Domain constitutional 
 provisions and statutes to all cases of injury to property; and 
 such constitutional changes as that introduced in New York, 
 removing the pecuniary limit in actions for death.' 
 
 ' While legislation is and always has been a natural means of introduc- 
 ing or declaring the existence of rights of action, any legislative predeter- 
 
INTRODUCTION, 11 
 
 It may perhaps.be worth while to point out that the study of 
 Damages involves something of much greater importance than 
 the acquisition of a number of technical rules of procedure. If 
 the first question for the student is, Of what rights and duties 
 does the Law consist ? there is closely involved in it another, — 
 What redress does it give for the violation of these rights and 
 duties? To be equipped with a knowledge of every right of 
 action would be of as little use to one unable to measure the 
 value of his right as to one totally devoid of a knowledge of the 
 nature and methods of judicial proof. 
 
 Historically, it is not too much to say that it is through damages 
 that rights of action came into existence. Experience of wrong 
 and injury is the efficient cause of all legal redress. The action 
 on the case was brought into use because, with the development 
 of society, the action of trespass was not found to cover the new 
 cases of damage that were arising. The right of action for 
 causing death was given by the legislature because of the loss 
 to the widow and orphan which death caused by wrongful or 
 negUgent acts was seen to occasion. And so, recently, the right 
 of privacy has been vindicated by the courts; not for its own 
 sake, but because of a growing perception of the suffering 
 caused by unauthorized intrusion into private life. 
 
 There is another fact which must not be overlooked, and that 
 is, that in every ordinary common-law complaint the existence 
 of the injury (the right of action), the right to compensation, and 
 the amount of damage alleged to have been sustained are tried 
 and decided in one proceeding.' It is for loss coupled either with 
 the infringement of a right or the neglect of a duty that the law_ 
 gives redress. But the infringement of a recognized legal right 
 
 mination of the measure of recovery must be, under the common-law 
 system, productive of unnecessary litigation. The true measure of recov- 
 ery cannot be exactly foreseen, because it depends upon the varying facts 
 in each case, viewed in the light of general principles. These general 
 principles are already known and need no legislative restatement. The 
 chief effect of novel legislative rules of damages is to make each word 
 employed in the statutes the subject of a protracted struggle of interpreta- 
 tion, resulting at last in an array of anomalous rules which only tend to 
 embarrassment and perplexity. 
 
 ' East & West I. D. & B. J. Ry. Co. v. Gattke, 3 McN. & G. 155, 169. 
 
12 ELEMENTS OF THE LAW OF DAMAGES. 
 
 of itself imports damage, and entitles the possessor of the right 
 to nominal damages, though there be no actual loss ; while it is 
 by no means true that all loss, though directly caused by another, 
 is actionable. Consequently, in examining the field of Damages, 
 the student is obliged to consider, first, cases of infringement of 
 what are recognized as rights by the Common Law, even 
 though no substantial injury be caused; second, cases of 
 substantial loss occasioned either by infringement of legal right 
 or by neglect of duty; third, cases where there is actual loss, 
 but no legal injury is considered to arise. But the task once 
 accomplished, the knowledge attained will be found to be a key, 
 not merely to the subject of Damages, but to the body of the 
 Law itself. 
 
PAET I. 
 
 MEASURE AND PROOF OF DAMAGES. 
 
 CHAPTER I. 
 
 COMMON-LAW PKINCIPLES. 
 
 The most fundamental general rule with regard to damages 
 IS that of Certainty. Damages must be certain, both in their 
 nature and in respect to the cause from which they spring. It is 
 more fundamental than any rule of compensation, because com- 
 pensation is allowed or disallowed subject to it. It is a rule of 
 proof, of paramount authority, and so limits the field of recovery 
 that legal compensation can seldom be exactly coextensive with 
 the actual injury suffered. Next to it in importance comes the 
 rule of proxiinate cause. This is closely connected with the rule 
 of certainty, and is a rule of necessity based upon the inherently 
 limited nature of judicial investigation. In law there is no re- 
 sponsibility for effects so remotely and indirectly connected with 
 a given act that we cannot, according to ordinary human expe- 
 rience, say with positiveness that one should occasion liability 
 for the other. Both these rules restrict legal compensation. 
 Whenever compensation is spoken of, what is meant is com- 
 pensation subject to these rules. 
 
 The law, in establishing civil liability, takes little notice 
 of motive. In criminal law, where punishment is concerned, 
 motive plays an important part. Civil law deals mainly with 
 acts and omissions. If these acts or omissions import legal 
 wrong, or if when causing injury they are actionable,' a good 
 
 ' E.g., on the ground of negligence. Unavoidable accident is a differ- 
 ent matter, and may be held to excuse a defendant. Stanley v. Powell, 
 [1891] 1 Q. B. 86; Brown v. Kendall, 6 Cush. 292. Negligence is estab- 
 lished, not by an inquiry into the defendant's state of mind, but by proofs 
 of acts or omissions showing absence of due care, — a matter of conduct. 
 
14 ELEMENTS OP THE LAW OF DAMAGES. 
 
 motive will not make them less so. If not actionable, a bad 
 motive will not make them so.* 
 
 It may be said generally that so far as liability goes, the state 
 of mind of the defendant is irrelevant to the question. Neither 
 infancy nor insanity relieves him from responsibility.^ So, a valid 
 contract once made, liability for a breach arises simply from the 
 fact of a breach by the act of the party. 
 
 The same is not true with regard to compensation. In the law 
 of damages, whenever the act complained of is of such a character 
 that the motive enhances the injury, some means are found of 
 taking the motive into account. In contract, generally, the mo- 
 tive for the breach has no effect upon the damage, and so the law 
 treats it as a matter of indifference. But if the contract is one of 
 a purely personal character, the reason of the rule ceases, and 
 hence in breach of promise, all the circumstances tending to 
 show the character of the act may be inquired into. In tort some 
 means is always found of bringing before the jury either the 
 motive, or what comes to the same thing, the character of the 
 wrong. This is the object accomplished by the doctrine of ex- 
 emplary damages, wherever it prevails. That doctrine is that in 
 cases of tort characterized by outrage, oppression, etc., the jury 
 may, in addition to compensation, give something for the sake 
 of punishment or example. In other jurisdictions the same end 
 is accomplished by allowing compensation for the sense of wrong 
 and injury that acts of this sort are calculated to produce. Ex- 
 emplary damages are given in addition to strict compensation, 
 on account of evil motive, where the facts show it ; * compensa- 
 tion for a sense of wrong attains practically the same end, — 
 that motive may not be left out of the account. Circumstances 
 "in mitigation or aggravation" are always admitted in evidence 
 in tort ; such circumstances are admitted partly for the express 
 purpose of throwing light on motive. The "sense of wrong and 
 
 ' Cooley on Torts, p. *688. This is the general rule; but there are 
 exceptions, e. g., cases in which an act, innocent when done by one per- 
 son, becomes actionable if done by several persons in combination for a 
 purpose not justifiable. See Quinn v. Leatham, [1901] App. Cas. 495. 
 
 » Williams v. Hays, 143 N. Y. 442. 
 
 • 1 Sedg. on Dam. § 357. 
 
COMMON-LAW PRINCIPLES. 15 
 
 injury" cauaed by accidental loss innocently inflicted by a child 
 can never be the same as that malevolently inflicted by an inten- 
 tional wrongdoer. 
 
 As a general rule, the law takes no notice of benefits conferred. 
 It is no answer to a complaint which establishes a legal injury, 
 that the defendant has conferred an advantage on the plaintiff. 
 A trespasser is still liable for his trespass, even though his tres- 
 pass has resulted in the improvement of the property trespassed 
 upon. When the damage is so involved with the benefit that 
 the latter necessarily reduces the former, it is necessarily al- 
 lowed for.^ 
 
 In every variety of action the measure of damages may be 
 laid down in an abstract form, and at the same time, in a par- 
 ticular case, this formula must be resolved into its elements, so 
 as to state, specifically, the kinds of injury for which compensa- 
 tion is recoverable. The most general rule to be met with is that 
 compensation must always be commensurate with injury.' Ap- 
 pUed to cases of contract, the rule is stated to be that the plaintiff 
 must be put in the same position, so far as money can do it, as he 
 would have been had the contract been performed.' More spe- 
 cifically stated, the rule in contract is laid down that the plaintiff 
 recovers such damages as may fairly and reasonably be consid- 
 ered either arising naturally, i. e., according to the usual course 
 of things, from such breach of contract itself, or such as may 
 reasonably be supposed to have been in the contemplation of 
 both parties at the time they made- the contract, as the probable 
 result of the breach.^ In a particular case, this rule may involve 
 the loss of profits, of the benefit of a sub-contract, interest, etc. 
 So in tort, the general rule is that the damages should be such a 
 sum as will place the plaintiff in the same position as if the tort 
 had not been committed. But here, again, to get at this sum, we 
 must consider, in one case, the pain suffered, the amount of bills 
 for nursing and medical attendance; in another, the valCie of 
 
 * Jewett V. Whitney, 43 Me. 242; Murphy v. Fond du Lac, 23 Wis. 365; 
 Forayth v. Wells, 41 Pa. St. 291. 
 
 * Rtfckwood V. Allen, 7 Mass. 254. 
 » Griffin V. Colver, 16 N. Y. 489. 
 
 * Hadley v. Baxendale, 9 Exch. 341. 
 
16 ELEMENTS OP THE LAW OP DAMAGES. 
 
 the use of property taken away or destroyed ; in a third, the sense 
 of humiliation and disgrace. 
 
 The right of action being established, these elements of dam- 
 age become part of the evidence in the plaintiff's case ; the court 
 must admit proof of them, and direct the jury to consider them 
 in rendering their verdict. If they fail to do so, it will be ground 
 for a new trial. 
 
 On the othe* hand, as has been already seen, notwithstanding 
 these general rules, the law falls far short of giving compensation 
 for the whole loss suffered, and consequently excludes in nearly 
 every case many elements of damage which would have to be in- 
 cluded if complete compensation were awarded. In all actions 
 for the recovery of money only, for instance, damages for non- 
 payment are limited to interest ; in most actions, the expenses of 
 litigation are excluded. These rules of exclusion will be pres- 
 ently considered. 
 
 The elements of damage which are admissible in evidence vary 
 with the various kinds of action which may be brought, and ele- 
 ments admissible in one kind of action are inadmissible in an- 
 other. To enumerate all the elements of damage admissible 
 would plainly be impossible; fortunately, they will be found to 
 fall generally under a comparatively limited number of heads 
 or classes, according as the injury is one to person, property, or 
 reputation, or involves the breach of a contract of sale, of carriage, 
 of hire, or, again, arises from the breach of a real covenant. 
 
 All private injury or loss through the acts of others arises either 
 from the invasion of some recognized legal right, as a right of 
 property, a right secured by contract, or a personal right, or 
 from the neglect of some duty resulting in damage. By syste^ ' 
 matic analysis the substance of the law of damages may be re- 
 solved into rights, enforceable either against particular persons 
 (rights founded upon contract), or against all the world (property 
 rights, personal rights, etc.), or, again, into a system of duties; 
 contractual duty being that of discharging an obligation volun- 
 tarily entered into by agreement with another, or implied in law; 
 other duties being to refrain from doing something which, on the 
 rival theory, would be regarded as the invasion of a right. Thus 
 every one has a right, as against all the world, to his personal 
 
COMMON-LAW PRINCIPLES. 17 
 
 liberty ; on the other hand, it is every one's duty to do nothing to 
 abridge another's personal liberty.' 
 
 It is impossible in considering the law of damages to conceive 
 of a duty without a correlative right, or of a right without a cor- 
 relative duty. The civil law deals only with rights and -duties 
 between man and man. The matter may be made clearer by 
 keeping constantly in mind the Une of distinction between legal 
 and all other relations. ■ Reckless behavior, for instance, is al- 
 ways imprudent, and always immoral, but it is not in itself neces- 
 sarily illegal. It is said to be immoral, among other reasons, 
 because, though its consequences may in a given case seem to 
 affect only the person guilty of the reckless act himself, some of 
 its remoter consequences are almost certain to fall upon others. 
 Thus the consequences of reckless expenditure fall, sooner or 
 later, in the case of a married man, upon his family. Such 
 recklessness is a violation, however, of a moral duty, and does not 
 necessarily give those affected any correlative right enforceable 
 by legal sanction. The same is true of recklessness with regard 
 to the property of others. A person may deal with another's 
 property intrusted to him for safe keeping without any care for 
 the consequences. If it escapes injury, the case does not come 
 within the cognizance of the law. So far as the law is concerned, 
 the matter is one of indifference. Thus far we are in a region of 
 moral duties, but there are no correlative legal rights. 
 
 But if the recklessness results in injury to property or person, 
 we at once find that we can express the attitude of the law toward 
 the matter in terms, on the one side, of a right, on the other of a 
 duty. It is every one's legal duty not to injure another through 
 failing to observe the amount of care required by the circum- 
 stances. It is every one's right not to be so injured. 
 
 The same thing is true of the duty of truth, and this is in some 
 respects a more striking illustration. It is a moral duty to be 
 truthful, but no one can make us observe it. Indeed, it is not 
 commonly insisted upon as an absolute duty. Not only are many 
 petty social deceits matters of indifference, and many trifling 
 
 • Cf. Austin's "Jurispradence," in which the analysis is founded on 
 rights, with Bigelow's "Torts," in which the rights are transmuted into 
 duties. 
 
 2 
 
18 ELEMENTS OF THE LAW OF DAMAGES. 
 
 suppressions of truth dictated by feelings of humanity, but false- 
 hood for some purposes (as in the illustration commonly given of 
 misdirecting a murderer in pursuit of his victim) is usually re- 
 garded as praiseworthy. But deceit which effects a fraud is a 
 breach of a legal duty, and at once brings into view a legal right. 
 
 For practical purposes the law, following in this, as in so many 
 other cases, the habits of ordinary speech and thought, treats a 
 matter as one of right or of duty, according as the conception of 
 right or duty is uppermost ^n the relation involved. W^en we 
 think of property or ownership we conceive of it as a nexus of 
 rights vested in the owner, not of duties imposed upon every one 
 else to respect those rights; on the other band, we always speak, 
 and think, of the duty to exercise due care, or the duty to be hon- 
 est in mercantile dealings, as such, and not as a right to have 
 every one refrain from such negligence as may cause damage; 
 nor of a right that every one should not be deceitful to the point 
 of detriment. This question of analysis is of some importance 
 in connection with the rules relating to nominal damages. 
 
 It is necessary to explain at the outset the various sorts of 
 Damage of which the law, on the one hand, takes cognizance, 
 and which, on the other, it disregards. 
 
 First. There may be substantial damages without any legal 
 injury or right to redress whatever. As a general rule, damnum 
 absque injuria covers all the ordinary rights to the enjoyment of 
 property with the Umitation, however, that unlawful exercise of 
 them causing damage gives an action. A landowner may for 
 instance protect his land from surface water, and is not liable to 
 an adjoining owner for damage done unless through negligence 
 in the exercise of this right' 
 
 It is to be observed that damnum absque injuria means neces- 
 sarily no more than damage to A. without a cause of action against 
 the defendant sued. The same damage which is absque injuria as 
 to B. may support an action for full damages against C. Where 
 loss or damage is suffered and there is no legal responsibility for 
 it anywhere, we have damnum absque injuria in the full or abso- 
 lute sense of the term; e. g., cases of pure accident, or cases of 
 consequential damage caused by public improvements. 
 
 ' Jacobson v. Van Boening, 48 Neb. 80; 32 L. R. A. 229. 
 
COMMON-LAW PRINCIPLES. 19 
 
 Second. There may be legal injury without any substantial 
 damage. This is called injuria sine dcmtno. It is not to be sup- 
 posed that, because there is no substantial damage, there is no 
 right of action. On the contrary, althou^ the act may be a 
 benefit, any legal infringement of a right imports damage, and 
 entitles the plaintiff to a trifling sum called nominal damages, 
 by way of redress, which may be regarded as compensation for 
 the invasion of the right only. The judgment has also the efPect 
 of proving his right in any new controversy over the same mat- 
 ter, and for this reason it may be said that, he must recover a ver- 
 dict of some sort. For example, in a case of trespass on real 
 estate, a verdict for the plaintiff is proof of title. For breach of 
 all contracts, all trespasses on real estate, all interferences with 
 easements, and all cases of tort where no substantial loss can be 
 shown, the plaintiff is still entitled to nominal damages.' 
 
 Third. Wherever actual damage is occasioned by legal injury, 
 or the infringement of a right, the law gives substantial pecuniary 
 redress. This embraces the whole field of contract and the great 
 body of torts. Those cases of tort, such as negligence, where 
 there is no right of action without damage, form an exception. 
 
 Fourth. Damage may be occasioned by the neglect (by way 
 of act or omission) of a duty which in the absence of ensuing loss 
 would be in law a matter of indifference. Such are all cases of 
 negligence and deception followed by loss.' 
 
 ' It is Bometimes said that neither damnum absque injuria, nor injuria 
 sine damno will give an action. "That no act characterized by these negSr 
 tions is actionable is, in the abstract, a truism." 1 Sutherland on Dam- 
 ages, § 3. This is a mistake; it is only in the first case that the action 
 fails. " I am not able to understand how it can be correctly said, in a legal 
 sense, . . . that injuria sine damno is not actionable. . . . Actual perceptible 
 damage is not indispensable as the foundation of an action. The law tol- 
 erates no farther inquiry than whether there has been the violation of a 
 right." — Story, J., in Webb v. Portland Mfg. Co., 3 Sumner, 189, 192, 
 
 " There are undoubtedly cases of deception followed by loss where no 
 right of action is given, as in the ordinary case of misrepresentations in 
 sales; but here the reason seems to be that the person who makes the 
 representation is under no obligation to disclose the true facts; or because 
 the buyer had brought it upon himself by not making enquiries. The 
 damage was caused not by the defendant but by the plaintiff himself. 
 Cooley on Torts, *476. 
 
20 ELEMENTS OF THE LAW OF DAMAGES. 
 
 Fifth. An anomalous class of cases exists where from reasons 
 of public policy damage alone will give a right of action though 
 there has been no breach of duty. Common carriers are, with cer- 
 tain exceptions, insurers against loss ; the owner of cattle escap- 
 ing from his control, is responsible for the consequences, though 
 he has exercised due care. In some jurisdictions this rule has 
 been extended to the case of inanimate substances {e. g., water, 
 nitro-glycerine) brought on to one's premises.' In all the fore- 
 going cases except the first, the law awards pecuniary com- 
 pensation, and it remains to consider on what basis the rules 
 governing this compensation rest. 
 
 The fundamental rule, as already stated, is that the remedy 
 shall be commensurate with the injury sustained, so that, in 
 cases of contract, the plaintiff shall receive a sum of money 
 sufficient to place him in the same position as if the contract had 
 been performed, in cases of tort in the same position as if it had 
 not been committed.^ 
 
 The injury must be such as comes from the cause of action 
 complained of, and none other.' The amount of damages is 
 determined by rules of law which neither court nor jury are at 
 liberty to disregard.* 
 
 While all awards of damages must be pecuniary, the elements 
 of injury from proof of which the award is arrived at are of in- 
 finite variety. They may be purely pecuniary, as in the case of 
 an action brought for breach of a contract to pay money; they 
 may have primarily nothing to do with money, as in the case of 
 many suits for defamation. The pain suffered as the con- 
 sequence of a railroad accident, the mental distress arising 
 from the non-delivery of a telegram, are not in their nature 
 
 ' Fletcher v. Rylands, L. R. 1 Ex. 265. Cf. Losee v. Buchanan, 51 N. Y. 
 476; Langabaugh J). Anderson, 68 Oh. St. 131; 62 L. R. A. 948; St. Ber- 
 nard V. Kemper, 60 Oh. St. 244; 45 L. R. A. 662. 
 
 ^ Rockwood V. Allen, 7 Mass. 254; United States v. Smith, 94 U. S. 
 214; Baker v. Drake, 53 N. Y. 211; Hobbes v. London & S. W. Ey. 
 Co., L. R. 10 Q. B. 111. When the damages are nominal, they are still 
 commensurate with the injury. 
 
 » Spade V. Lynn & Boston R. R., 168 Mass. 285; 43 L. R. A. 832. 
 
 * Walker v. Smith, 1 Wash. C. C. 152. 
 
COMMON-LAW PRINCIPLES. 21 
 
 pecuniary injuries; the measure of the loss inflicted by them, 
 however, must be pecuniary. 
 
 To understand the rules governing the measure of recov- 
 ery, another important principle must be kept in mind. All 
 injury will be found to fall under two great heads, — gain 
 prevented, or damage suffered. Xhe principle, pervading the 
 whole subject, that no damages can be recovered which cannot 
 be estabUshed with certainty has been aheady noticed. But 
 damages of one sort may often be established with certainty, 
 while damages of another are incapable of proof. In such case, 
 one means of ascertaining the damages failing, we resort to 
 another, and thus there sometimes seem to. be different rules of 
 damages for the same species of injury. " Cases not unfrequently 
 occur in which ... it is certain that some loss has been sus- 
 tained, or damage incurred, and that such loss or damage is 
 the direct, immediate, and natural consequence of the breach 
 of contract, but where the amount of the damages may be 
 estimated in a variety of ways. In all such cases the law, in 
 strict conformity to the principles already advanced, uniformly 
 adopts that mode of estimating the damages which is most 
 definite and certain." ^ For the breach of a contract, for in- 
 stance, in one case the profits which would have been earned 
 may be given; in another they are ruled out, and the plaintiff 
 recovers the value of his time.' 
 
 In the same way, on similar states of facts, rent will be given 
 in one case, and interest on the money value of an article in 
 another. The following are some of the alternative measures 
 of recovery: 1. Loss suffered. 2. Gain prevented. 3. The 
 value of the use of the thing. 4. Interest. 5. Difference 
 between actual and contract value. 6. Value of a bargain, less 
 such expense as plaintiff must incur to obtain it.' 
 
 In case of sale with warranty there is a regular rule — the 
 difference between the thing as it is, and as it would have been 
 
 ' Per Selden, J., in Griffin v. Colver, 16 N. Y. 489, 495. 
 
 ' Howe S. M. Co. v. Biyson, 44 la. 159, 163. In another case the value 
 of the plaintiff's time may be ruled out, and rent or the hire of a chattel of 
 which he has been deprived be awarded him. 
 
 ' Passinger v. Thorbum, 34 N. Y. 634. 
 
22 ELEMENTS OP THE LAW OP DAMAGES. 
 
 had the warranty been true. But owing to the circumstances 
 this rule may not be applicable, and then some other must be 
 selected. So, the breach of contract being refusal to furnish an 
 article to be employed in manufacture, which cannot be procured 
 in the market, and the vendee having to procure an inferior 
 article, the measure of damages is not the difference between 
 the contract and market price (for the latter cannot be shown), 
 but it is either the loss from having to use an inferior article, or 
 from not receiving an advance upon a sub-contract made in the 
 ordinary course of business.* Where an article had been de- 
 stroyed by the act complained of, the question often arises 
 whether in addition to its value, other damages may be recovered 
 representing gains which would have come from its use. If these 
 gains were within the contemplation of the parties and can be 
 certainly proved, there is no reason why they should not be 
 allowed. Otherwise the alternative rule of allowing interest on 
 the value comes into play, this interest being now the best meas- 
 ure attainable of the value of the use.* 
 
 But for the power of the law to select an alternative rule of 
 damages in this way, there would often be a failure of justice. 
 
 > McHose V. Fulmer, 73 Pa. St. 365. 
 
 ' Thomas B. & W. Mfg. Co. v. Wabash, St. L. & P. Ry. C!o., 62 Wis. 642. 
 
CHAPTER II. 
 
 CERTAINTY. 
 
 The rule of Certainty pervades the entire field of tort and 
 contract. It is not peculiar to the law of damages, but is a 
 universal rule of evidence, which, stated as a general principle, 
 seems little more than a truism. It derives its great importance 
 in our system from the fact of the control exercised by the court 
 over the jury with reference to proof. 
 
 As already stated, any fact which either party desires to 
 establish in a court of common law is proved by evidence sub- 
 mitted to the jury, but only by permission of the court, under 
 the mles governing the admissibility of evidence; and every 
 decision of the court admitting or rejecting proof offered is 
 subject to review on exceptions taken during the trial. In ihe 
 same way, all the instructions given by the court to the jury as 
 to the force and effect of the evidence admitted are subject to 
 exception, and the verdict as a whole is, on appeal, examined in 
 the light of the evidence, to see whether it can be sustained. 
 To warrant the affirmance of a verdict, it must be based, not on 
 speculation or hypothesis, but on proof certain in its nature, and, 
 even to warrant the admission of evidence, it must be evidence 
 of matters of fact. And so, when the damages recoverable for a 
 wrong or breach of contract are to be .established, the nature and 
 origin of the injury must be proved with such reasonable cer- 
 tainty as the nature of the case admits. Damages "must be 
 certain, both in their nature and in respect to the cause from 
 which they proceed." ' 
 
 Most of the illustrations of the rule arise in actions for breach 
 
 of contract, turning on the question of gains prevented, or 
 
 profits; in cases of tort affecting the person, where the injury is 
 
 in whole or in part non-pecuniary, and where the jury has a 
 
 ' GriflBn v. Colver, 16 N. Y. 489, 495 {per Selden, J.). 
 
24 ELEMENTS OF THE LAW OF DAMAGES. 
 
 discretionary control, the rule is of less importance, because the 
 extent of non-pecuniary injury is always more or less uncertain; 
 but where the injury is one to property, or pecuniary rights only, 
 the rule of certainty applies exactly as in contract. 
 
 When it is said that the rule in the cases of non-pecuniary 
 injuries is of less importance, it is only meant that from the 
 nature of the case pecuniary standards of certainty, market 
 values, etc., cannot be applied. But the evidence given must be 
 of facts, and not of conjecture. 
 
 In some cases it happens that the claim of expected profits as 
 
 ' the measure of damages is denied as uncertain ; but at the same 
 
 time evidence of past profits is admitted as having a tendency to 
 
 show the value of the use of the thing of which the plaintiff has 
 
 been deprived. 
 
 In cases of total destruction of property, the usual rule is to 
 refuse profits but to allow interest on the value from the time of 
 destruction. 
 
 Rules. 
 
 1. Damages must he certain, both in their nature and in 
 
 respect to the cause from which they proceed. 
 
 2. Hypothetical or speculative damages are not recoverable. 
 
 Illustrations. 
 
 (a) A contractor agrees to furnish marble from K. & M.'s quarry 
 to erect a building for a stipulated price. The marble is deliv- 
 ered for some time, when the contract is broken by a refusal to 
 receive any more. The profits which would have been made are 
 recoverable.^ 
 
 (6) A railroad company wrongfully refuses to furnish a shipper 
 with transportation for stove wood. The measure of damages may 
 include profits which would have been made on a contract with a 
 third person for the sale of the wood.^ 
 
 (c) The contract is for the purchase of siUcate of soda to be 
 manufactured ; there is no market value. The seller's measure of 
 
 ' Masterton v. The Mayor, 7 Hill, 61. 
 
 " Houston E. & W. T. R. R. Co. v. Campbell, 91 Tex. 551; 43 L. R. A. 
 225. 
 
CERTAINTY. 25 
 
 damages is the difference between the contract price and the cost 
 of production. ' 
 
 {d) The action is for breach of a contract for employment of 
 a general manager of an insurance company for a percentage of 
 new and renewed insurance secured. The plaintiff may recover 
 for expenditures and also anticipated profits based on actual new 
 business proved or estimates by actuaries as to renewals.^ 
 
 (e) D. makes a contract to go as master on a whaling voyage 
 for a certain percentage of the profits. Being wrongfully dis- 
 missed, he can recover his share of the earnings, both before and 
 after his removal.^ 
 
 (/) One partner sues another for breach of the copartner- 
 ship articles in dissolving before the time fixed. The damages 
 are the profits which he would have made, and as bearing 
 on this question, evidence of the past profits of the business is 
 admissible.* 
 
 (g) A tenant is wrongfully ejected by his landlord from premises 
 where he was established as a jeweller; he is entitled to recover 
 for loss of profits.* 
 
 (h) A. having an undivided interest in a mine is excluded from 
 possession by his co-tenant. He may recover for the loss of profits 
 he would have made but for such exclusion." 
 
 (i) A landlord, by cutting off steam power, destroys his tenant's 
 business. He is responsible in damages- for loss of profits. Evi- 
 dence of the extent of the business and profits previously made is 
 admissible.' 
 
 (j) In an action for personal injuries, a book canvasser, re- 
 ceiving for his services a certain percentage on sales, is permitted 
 to testify to the amount of his annual sales, for several years prior 
 to the injury. The evidence is admissible.' 
 
 ' Todd V. Gamble, ,148 N. Y. 382; 52 L. R. A. 225. 
 » Wells V. National Life Asso. of Hartford, 39 C. C. A. 476; 99 Fed. 
 222; 53 L. R. A. 33. 
 
 ' Dennis v. Maxfield, 10 Allen, 138. 
 
 * Bagley v. Smith, 10 N. Y. 489. 
 
 » Allison V. Chandler, 11 Mich. 542. 
 
 • Paul V. Cragnaz, 25 Nev. 293; 47 L. R. A. 540. 
 ' Chapman v. Kirby, 49 111. 211. 
 
 ' Ehrgott V. The Mayor, 96 N. Y. 264. So of the past earnings of pro- 
 fessional men, or any one living by his labor. Sedg. on Dam. § 180. To 
 get at the value of the plaintiff's time through his past earning capacity 
 as shown by actual earnings, is usually the njitural method of proof. 
 
26 ELEMENTS OP THE LAW OP DAMAGES. 
 
 {k) The contract makes A. exclusive selling agent of 85 per 
 cent of B.'s pack of fish on commission for a definite term. On 
 breach by B., evidence of sales subsequent to the breach during the 
 contract term made by B. through its agents is admissible as show- 
 ing gains prevented.* 
 
 (/) H. sues C. for overfiowing his land and preventing its culti- 
 vation. His measure of damages is the fair rental value of the 
 land, and not the value of crops which might possibly have been 
 made, less the cost of producing and marketing them.* 
 
 (m) Seed sold is warranted good, but does not produce a crop. 
 The expected profits are entirely speculative, and the measure of 
 damages is the cost of the seed, the value of the labor in preparing 
 the ground, less any benefit to the land resulting from such labor, 
 together with interest.' 
 
 («) In a similar case the seed is of inferior quality, and produces 
 an inferior crop. The uncertainty of the quantity of the crop, de^ 
 pendent upon the weather and season, is removed, and the measure 
 of damages is the difference between the value of the crop raised 
 and the value of the crop as it should have been.* 
 ' (o) The cause of action is breach of a contract with B. to furnish 
 him a hall for performances of a theatrical company, B. to receive 
 half the gross receipts. The measure of recovery is not conjectured 
 profits, but the expenses of preparation for performance.^ 
 
 (p) Breach of contract to exhibit a machine for sale. Profits 
 which might have been made had the contract been carried out are 
 too uncertain to be allowed.' 
 
 (q) A telegraph company negligently delays the transmission 
 of a message directing the purchase of property. In consequence 
 of the delay no purchase is made by the person to whom it 
 is addressed, and the price advancing, he does not purchase 
 at all. There is no proof that the sender gave the order in 
 expectation of profits on an immediate resale; nor that he could 
 have resold at any subsequent time. He cannot recover for lost 
 
 ' Emerson v. Pacific Coast & N. P. Co., 96 Minn. 1; 1 L. R. A. (sr.s.) 
 445. 
 « » City of Chicago v. Huenerbein, 85 111. 694. 
 ' Ferris v. Comstoclc, 33 Conn. 613. 
 
 * Wolcott V. Mount, 36 N. J. L. 262. 
 
 * Bernstein v. Meech, 130 N. Y. 364. 
 
 * Winston Cigarette M. Co. ti. Wells-Whitehead T. Co., 141 N. C. 284; 
 8 L. R. A. (n. s.) 255. 
 
CERTAINTY. 27 
 
 profits, and his measure of damages is the cost of transmitting the 
 message.' 
 
 (r) In an action for the price of an engine, the defendant claims 
 to reduce the damages by showing non-delivery at the time agreed. 
 The engine was to have been used in a mill, and the vendee through 
 the delay loses the use of certain machinery. The measure of dam- 
 ages is not the possible profits, but the fair value of the use during 
 the period of delay.' 
 
 (a) A. contracts to supply wheels to B., the owner of a large 
 plant for the manufacture of vehicles. For failure to deliver, the ^ 
 measure of damages is not the loss of full profits but the reasonable 
 value of' the use.' 
 
 (t) In an action for the price of a steamboat, the vendee claims 
 the right to deduct from the contract price loss of profit on trips 
 that might have been made but for defects of construction. Such 
 damages are not recoverable.* 
 
 (m) The cause of action is breach of contract for non-payment 
 of money. Profits which might have been made by employing the 
 money are speculative, and cannot be recovered,* 
 
 (v) In action for personal injuries, no evidence of the value 
 of the time lost by the person injured is given, nor are any facts 
 proved from which its value can be estimated. The court charges 
 that, if entitled to a verdict, he is entitled to "compensation for the 
 time lost." On exception to this portion of the charge, the judg- 
 ment is reversed, and a new trial ordered.* 
 
 (w) The action is to recover for personal injuries. Plaintiff had 
 been engaged in the tea-importing and jobbing business. The 
 profits, resulting partly from the services of his partner, are uncer- 
 tain. Evidence of past profits is inadmissible.' 
 
 (x) M., a fisherman, sues W. for injury to a fishing-net. It 
 would have required ten days to restore the net, but this was 
 not done. The plaintiff can recover the cost of. repairing and 
 resetting the net, and the value of its use for the ten days, but 
 
 -' W. U. Tel. Co. V. Hall, 124 U. S. 444. 
 ' Griffin v. Colver, 16 N. Y. 489. 
 
 • ConnorsviUe W. Co. v. The McFarlan C. Co., 166 Ind 123; 3 L. R. A. 
 (N. s.) 709. 
 
 • Blanchard v. Ely, 21 Wend. 342. 
 
 • Greene v. Goddard, 9 Met. 212. 
 
 • Leeds v. Met. Gas Light Co., 90 N. Y. 26. 
 .. ' Masterton v. Mt. Vernon, 68 N. Y. 391. 
 
28 ELEMENTS OP THE LAW OF DAMAGES. 
 
 not such prospective profits as might have been made Huring that 
 period.^ 
 
 iy) The action is for the value of personal property destroyed. 
 Interest on the value may be given, but not profits.^ 
 
 (z) In an action for personal injuries by a railway coupler and 
 switchman, receiving SI. 50 per day, he is asked, as a witness, as 
 to his prospects of promotion to better paid employment. He 
 testifies that he thinks he would have been promoted; that there 
 is '"a system" by which "if a man falls out you stand a chance of 
 taking his place," and that yard-conductors obtain a salary from 
 $60 to $75 per month. The evidence of the chance of promotion 
 is inadmissible, as being too uncertain to be submitted to the jury 
 in connection vsdth the wages of employees in the superior em- 
 ployment.^ 
 
 {aa) U. and others are prevented by the act of the defendant 
 from using their coal lands for a year. The measure of damages 
 is not the possible profits, but the value of the use. Evidence is, 
 however, admissible for the purpose of shovdng the value of the 
 use of the rights taken, of the quality and quantity of the coal, the 
 expense of mining, the nature and extent of the faciUties for trans- 
 portation to market, the extent of the demand, the cost of placing 
 the coal on the market, and its market price. (All of these taken 
 together would necessarily tend to show the possible profits.)* 
 
 Q)h) L. buys W.'s interest in a patented article, and agrees to put 
 it on the market and pay W. $5,000 from the net profits. On breach 
 of the contract, the plaintiff cannot recover profits "which might 
 probably have been made;" but if no profits are proved, only 
 nominal damages.^ 
 
 {cc) Action for loss of wife's service. The injury complained 
 of caused a miscarriage, and the jury were allowed to give damages 
 for loss of prospective offspring. Held, error ; such damages would 
 have been purely speculative; there was no certainty that a child 
 would have been bom aHve, and therefore no basis for any calcula- 
 tion of pecuniary value.' •V«**wvA*tAo( ' i \ S^' 
 
 »» ' Wright V. Mulvaney, 78 Wis. 89. 
 
 ' Parrot v. Knickerbocker Ice Co., 46 N. Y. 361 ; Weick v. Dougherty, 
 28 Ky. L. Rep. 930; 3 L. R. A. (n. s.) 348. 
 "" ' Richmond & Danville R. R. v. Elliott, 149 U. S. 266. 
 
 * Newark Coal Co. v. Upson, 40 Oh. St. 17. 
 
 » Winslcw V. Lane, 63 Me. 161. 
 
 » Butler V. Manhattan R. R., 143 N. Y. 417; 26 L. R. A. 46; ace. Tun- 
 nicliffe v. Bay Cities C. R. R. Co., 102 Mich. 624; 32 L. R. A. 142. 
 
CERTAINTY. 29 
 
 (dd) Action by a florist against owner of pipes from which gas 
 has escaped injuring his plants. A claim for damages through 
 injury to plaintiff's business reputation on account of sales of 
 damaged plants is conjectural and cannot be allowed.' 
 
 • Dow V. Wiimipesaukee Gas & Elec. Co., 69 N. H. 312; 42 L. R. A. 
 569. 
 
CHAPTER m. 
 
 RULES OF EXCLUSION. 
 
 The whole law of damages may be stated in the form of a 
 single proposition : compensation must always be commensurate 
 with injury. Before examining the subordinate rules into which 
 this very general formula resolves itself when appUed in practice 
 to particular cases, it is necessary to notice certain rules of exclu- 
 sion which, together with that of Certainty, reduce the field of 
 actual compensation within much narrower limits than might 
 perhaps have been anticipated. Some of these rules are fre- 
 quently criticised as illustrations of the arbitrary and imperfect 
 character of the law, and as if they might conceivably have been 
 omitted altogether. It is believed, 'however, that they rest upon a 
 foundation of principle, and cannot be disregarded without im- 
 pairing two essential requirements, — certainty of proof, and uni- 
 formity of law. 
 
 1. As to the first and most constantly recurring of these rules 
 of Exclusion, there is, fortunately; no ; dispute. The damages 
 must be commensurate with the injury, but only so far as the 
 injury proceeds from the cause complained of. This subject will 
 be examined more fully elsewhere. Here it is only necessary to 
 call attention to the fact that the rule is founded upon common 
 experience of the relation between cause and effect. In an 
 action for trespass, no one at the present day would be per- 
 mitted to show that the trespasser was a witch, and had by 
 means of a spell injured his cattle. Such is not a conceivable 
 result of a trespass. In an action for a simple assault, evidence 
 that the person assaulted had suffered in his reputation for 
 honesty would be irrelevant.* 
 
 ' For. a case in point see Hutchinson v. Snider, 137 Pa. St. i. In an 
 action by a boarding-house keeper for injury caused by negligence, evi- 
 dence that her house was not as well filled as before is not enough to war- 
 
RULES OP EXCLUSION. 31 
 
 In the same way, though the plaintifP may be able to show a 
 clear case of injury, yet if he voluntarily enhances it, the en- 
 hanced damage is not due to the cause of action, but to his own 
 act. The law expects that every one who is injured by another 
 will use ordinary prudence to make the consequences as light as 
 possible. A person injured in a railway collision may have a 
 right of action, but if by refusing to employ a surgeon, he makes 
 a slight injury so much more serious than it would otherwise 
 have been that he dies, his death is to be laid at his own door, not 
 at that of the railway company.' 
 
 2. The next principle to be noticed is that no recovery can 
 be had for remote damages, that is, for such damages as are 
 connected with the cause of action, but not so closely that 
 responsibility can legally attach to him who is . to be made 
 answerable. The law cannot trace, because the human mind 
 cannot trace, the operation of any given cause beyond a certain 
 distance; every cause in operation at a ^ven time produces 
 effects, which in their turn are the causes of other effects, and it 
 very soon becomes impossible for the mind to determine that 
 any given effect which it perceives is the result of the cause of 
 action, any more than of some secondary cause. If A. fells B. 
 to the earth, and B.'s skull is fractured, the chain of cause and 
 effect is plain enough. But in most cases the matter is not so 
 simple. Sparks from an engine set dry grass on fire, and the fire 
 
 rant a recovery. The fact may be due to other caiises. Wallace v. Penn. 
 R. R. Co., 195 Pa. 127; 52 L. R. A. 33. Cf. FideUty & D. Co. v. L. Bucki 
 & Son L. Co., 189 U. S. 135. 
 
 * This is called the rule of avoidable consequences. An analogous rule 
 limiting the right of action itself is that of contributory negligence. 
 Precisely as no damage can be recovered which does not flow from 
 the cause of action complained of, so if there has been negligence on 
 the defendant's part, yet if the negligence on the plaintiff's part con- 
 tributed to produce the cause of action, there is no recovery, because, there 
 are no means of proving with certainty whether the plaintiff's negligence 
 was an essential part of the cause or not. The rule of contributory negli- 
 gence, however, which restricts recovery to the injury so far as it proceeds 
 from the cause of action differs from that just noticed in being purely 
 technical. Under other systems than that of the common law, as in Ad- 
 miralty, in case of mutual fault the loss is apportioned. It is merely men- 
 tioned here because it is apt to be mistaken for a rule of damages. 
 
32 ELEMENTS OF THE LAW OF DAMAGES. 
 
 is communicated to a distant hay-rick which is close by a dwell- 
 ing. The fire spreads from the hay-rick to the dwelUng, which 
 burns to the ground. Here it may be a nice question whether 
 the causa causans of the injury is the sparks from the locomotive, 
 or negligence in placing the hay-rick too near the dwelUng. 
 
 Where a human act or omission has set in motion a train of 
 consequences, the intervention of an independent will may pro- 
 duce a result entirely unexpected. Such a result is regarded 
 as a remote consequence of the original cause. A seaman is 
 engaged fraudulently to go to Peru on a vessel which proves to 
 be a privateer. In a Peruvian port he goes ashorg to consult 
 the authorities, and is arrested and imprisoned as a deserter 
 from the Peruvian army. This consequence is too remote for 
 compensation.' 
 
 3. In all ordinary actions of Contract, only pecuniary elements 
 of injury are considered. Pain of mind and anxiety are excluded. 
 The reasons for this rule are probably threefold. First, the 
 evidence of the suffering must, in the nature of the case, come 
 wholly from the person injured, and may be grossly exaggerated 
 or even invented for the occasion. Second, different people 
 suffer anxiety arising from such causes in different degrees, and 
 there is no common measure of the suffering. Third, in general, 
 as a matter of fact, the natural and probable consequence of a 
 breach of contract is the loss of money or money's worth. 
 
 Almost all contracts are of this description. But contracts are 
 made of which the value does not lie wholly, or even at all, in 
 pecuniary advantage. Such is a promise of marriage, and such 
 is also a contract for the delivery of telegraphic messages relating 
 to family affairs, and interests non-pecuniary. In the former 
 case universally; in the latter, in some jurisdictions, the rule 
 ceases to govern, the natural consequence of the breach being 
 non-pecuniary. 
 
 It is to be observed that the civil law does not seem to find any 
 rigid rule necessary. Thus, in Louisiana, where civil-law princi- 
 ples prevail, damages may be recovered in the case of an ordinary 
 contract for humiliation and disappointment." But in this and 
 
 ' Burton V. Pinkerton, L. R. 2 Ex. 340. 
 » Lewis V. Holmes, 109 La. 1030. 
 
RULES OF EXCLUSION. 33 
 
 many other matters the jurisprudence of those jurisdictions which 
 administer civil law is much less rigid than the common-law 
 system. The causes of this difference are deeply imbedded in 
 the divergent nature, history, and administration of the two 
 systems. 
 
 4. It is the ordinary rule in actions for the recovery of money 
 only, that the plaintiff recovers beyond the amount of the debt 
 merely the interest on the money while withheld.' It may be 
 that the failure to receive the money has involved him not only 
 in other losses, but in absolute ruin. He is nevertheless restricted 
 to interest, or the value of the use of the money while he is kept 
 out of it. To one unfamiliar with the difficulties of proof which 
 limit all attempts at perfect compensation, this must seem a 
 harsh rule, but its foundation probably rests upon the fact that 
 the causal connection between the non-payment of the money 
 and the other losses is never capable of exact proof.^ 
 
 The general rule is that damages in contract must be such as 
 flow naturally from the breach, or such as may be supposed to 
 have been in the contemplation of the -parties as the result of the 
 breach. But what damages do flow naturally from the failure to 
 pay &oney ? It cannot be said that, beyond the loss of interest, 
 there is any normal rufe on the subject, for it depends on the cir- 
 cumstances in each particular case of the person who is to receive 
 the money. It may produce merely annoyance. If his credit is 
 good he may be able to procure the money elsewhere at once, and 
 lose nothing but the interest. Even without any mercantile credit 
 whatever he may have property by pledging or mortgaging which 
 he may make himself whole. Whether he procures the money 
 or not will depend very often upon his individual vigor and readi- 
 ness. So that in general it is not possible to say that the breach 
 has any certain result except the loss of interest. To take an 
 extreme case, suppose the failure to pay is immediately fol- 
 lowed by bankruptcy. Is this the result of the breach of con- 
 tract, or chiefly of causes long antedating it ? In a particular case 
 the question cannot be answered without an examination into 
 the affairs of the person injured, similar to that resorted to in 
 
 ' British Col. S. M. Co. v. Nettleship, L. R. 3 C. P. 499, 506. 
 ' There are exceptions. See post, Chap. XIX. 
 3 
 
34 ELEMENTS OP THE LAW OF DAMAGES. 
 
 case of proceedings supplementary to execution, but far more 
 difficult, because the issue raised would not be merely whether 
 the person was devoid of property, but whether his being desti- 
 tute was the result of the failure to pay him a certain sum of 
 money at a certain day. Stated in this way, the reason of the 
 rule limiting the recovery to interest is sufficiently apparent.' 
 
 5. The rule of exclusion which often seems most severe is 
 that the prevailing party in an action at law is allowed to recover 
 nothing either for the expenses of the litigation, or for his loss of 
 time while engaged in it.^ A common-law judgment in an 
 action for damages gives to the successful party only his taxable 
 costs. These consist of small fees, bearing roughly a certain rela- 
 tion to the length of the period covered by the litigation. They 
 may have been originally intended as compensation for the time 
 wasted in the suit, but they answer no such purpose now. For 
 the counsel fees paid, no compensation has ever been made.* 
 
 At first sight this rule may seem unjust, but there is much to be 
 said on the other side. First, if the plaintiff, on recovering a 
 verdict, could saddle his opponent with the money paid or due to 
 counsel, it would clearly be necessary to allow the defendant the 
 same right. But this would tend to encourage speculative litiga- 
 tion. Again, should either an unsuccessful action, or an unsuc- 
 cessful defence entail this consequence ? An unsuccessful suit, 
 or defence is neither a breach of contract nor a tort. The plain- 
 tiff certainly has violated no rights of the defendant by suing 
 
 ' See Greene v. Goddard, 9 Met. 212, in which the rule allowing nothing 
 but interest is traced to the uncertainty which would attend any attempt 
 to estimate the profits which might have been made from the employment 
 of money. This is final as to gains prevented ; and it seems to apply just 
 as clearly to loss suffered. 
 
 ^ Oelrichs V. Spain, 15 Wall. 211, 230. A bank induced to pay out 
 money by a false telegram forwarded by an employee of a telegraph com- 
 pany may recover from the company; but not for counsel fees expended 
 in an effort to recover the money from the man to whom it was paid. 
 Pacific P.'Tel. Cable Co. v. Bank of Palo Alto, 48 C. C. A. 413; 109 Fed. 
 369; 54 L. R. A. 711. 
 
 ' The practice recognized in some jurisdictions, that the jury may, 
 when exemplary damages are recoverable, take into account counsel fees 
 is not really an exception. In such jurisdictions they are not allowed as 
 part of the plaintiff's legal compensation, nor even as coimsel fees. 
 
EULES OF EXCLUSION. 35 
 
 him. On the contrary, he has exercised a right guaranteed to 
 him by law. The verdict, it is true, may establish that the plain- 
 tiff has no cause of action ; but in ninety-nine cases out of a hun- 
 dred he supposes himself to have one, and his motive in suing 
 is immaterial. Consequently, if the defendant has been- obliged 
 to engage counsel, it is at most the result of a mistaken view 
 taken by the plaintiff of his own position. For, although a party 
 is supposed to know the law, he is not by any means supposed to 
 know all the facts in advance, — for many of these may be 
 within the exclusive knowledge of his adversary. As a rule, the 
 law allows the- assertion of rights without regard to motive, and 
 if it be contended that the plaintiff should pay the defendant's 
 counsel fee because he instituted the suit without justifiable 
 cause, this would make necessary the determination of the very 
 issue which the law generally declares irrelevant, — why did the 
 plaintiff bring the suit ? 
 
 But the right of the plaintiff to a counsel fee stands on no 
 better footing! If the plaintiff has an untrammelled right to sue, 
 the defendant has an equally perfect right to defend. In actions 
 of contract a positive rule of law precludes all inquiry into mo- 
 tive; in actions of tort, when evil motive is proved, the jury, as a 
 rule, have the right to give exemplary damages. To allow coun- 
 sel fees in addition would be manifestly oppressive. 
 
 But the fundamental difficulty is the impossibility of determin- 
 ing to what extent and to what amount the counsel fees of one 
 party are caused by the wrong or breach of contract committed 
 by the other, and how far these expenses have been swollen by 
 independent causes. It may be that the defendant would have 
 settled without suit, if the opportunity had been afforded him, in 
 which case the cause of the litigation can hardly be said to be the 
 act of the defendant. It may be that counsel have through want 
 of skill, recklessness, etc., made the expenses unnecessarily great ; 
 in this case so much of the expenses as came from this cause was 
 certainly not due to the defendant. 
 
 That this is the true explanation is confirmed by the excep- 
 tional cases in which counsel fees are allowed, — not in the 
 original suit, but where litigation has been directly occasioned by 
 the wrong or breach of contract of the defendant. Thus, when 
 
36 ELEMENTS OF THE LAW OF DAMAGES. 
 
 a contract, made by A. to submit B.'s claims to arbitrators, is 
 broken by him, and B. has retained counsel, and been at trouble 
 and expense in preparing for the trial, such expenses may be re- 
 covered. But the principle that they must have been caused by 
 defendant's wrong is not lost sight of, and hence they are only 
 recoverable in so far as they were not available for the trial of 
 the case before the ordinary tribunals.' And so in an action for 
 breach of covenants of seizin or of warranty, the counsel fees in 
 the eviction suit, if reasonably defended, are recoverable.^ And, 
 generally, whenever a party is called upon to defend a suit 
 founded upon a wrong, for which he is held responsible in law, 
 without misfeasance on his part, but because of the wrongful act 
 of another against whom he has a remedy over, counsel fees are, 
 if he has notified the other to appear and defend, the natural and 
 reasonably necessary consequences of the wrong of the other.' 
 
 Rules. 
 
 3. No recovery can be had for damages attnbidable to any 
 
 cause other than the cause of action. * 
 
 4. No recovery can be had for remote damages. 
 
 5. In actions for breach of a contract, the advantage lobe de- 
 
 rived from which is money or money's worth, the party 
 entitled to siush advantage can only recover for elements of 
 injury pecuniary in character. 
 
 6. hi actions for the recovery of money only, no damages are 
 
 recoverable, beyond the principal sum, with interest. 
 
 7. In an original proceeding there can be no recovery, beyond 
 
 costs, for time or money spent in the litigation. 
 
 ' Pond V. Harris, 113 Mass. 114. 
 
 ' Ryerson v. Chapman, 66 Me. 557. Of. Wiggins v. Pender, 132 N. C. 
 628; 61 L. R. A. 772. 
 
 = Westfield v. Mayo, 122 Mass. 100. 
 
 ' A. sends a telegraphic message to B., which the company negligently 
 delivers to C. A. being informed of the mistake deals with C. instead of 
 B. For the ensuing loss A. cannot hold the company responsible. W. U. 
 Tel. Co. V. Bariow, 51 Fla. 351; 4 L. R. A. (n. s.) 262. 
 
CHAPTER IV. 
 
 TORT AND CONTRACT. 
 
 Two conflicting tendencies are perceived to be at work in the 
 law of damages, which, once understood, explain many apparent 
 inconsistencies. One is a tendency to assimilate the rules gov- 
 erning in tort and contract; the other, to separate them by a per- 
 manent line of division. 
 
 To account, first, for their historical separation, there is the 
 reason already referred to, — that tort long antedates contract, 
 and that originally the damage suffered from a tort was treated 
 as a matter of fact, which the jury were to report to the court, 
 like any other. To understand the change effected by the process 
 of time, we must first imagine ourselves in a state of society in 
 which there are no legal rules of damages at all, in which contracts 
 can hardly be said to have any existence, and in which injuries 
 to the person, and very simple forms of interference with poverty 
 seem to have constituted the chief business of the courts.* 
 In such a state of society civil injuries consist wholly of torts, 
 that is, of overt acts infringing definite rights ; in the case of 
 such acts, the neighbors of the parties are called in to tell the 
 court what damage has been done. It is a matter peculiarly 
 within their knowledge. 
 
 Gradually, with the progress of society, and the development 
 of new relations in the business of life, contract comes into view, 
 and this necessarily is a matter with which the jury has little to 
 do. The agreement consists of a promise to do or refrain from 
 doing something; it is either express, or implied by the law 
 itself from the circumstances. In either case, the validity of the 
 promise, its interpretation, the effect of its breach in giving a 
 right to redress, and the extent of the redress are matters peculi- 
 
 > Pollock and Majtiand, 15. 
 
38 ELEMENTS OP THE LAW OP DAMAGES. 
 
 arly fitted for the consideration of the court. Consequently at the 
 foundation of our system we find the measure of damages in tort 
 remitted to the jury absolutely, while the measure of damages in 
 contract soon shows signs of being regarded as a question of law. 
 
 The establishment of rigid forms of action and rules of plead- 
 ing necessarily have the effect of strengthening this tendency. In 
 debt, in debt on bond, or assumpsit, the measure of recovery does 
 not depend on the facts of the transaction, but on the proper 
 interpretation of the writ and the language employed by the 
 pleader. The jury know nothing about it, and if they did, would 
 be incompetent to decide the question. Meanwhile the function 
 of the jury slowly changes. Instead of being called in to teU the 
 court what the facts are, it gradually becomes itself a tribunal of 
 fact, no longer reporting matters of its own knowledge, but de- 
 ciding questions of fact submitted to it, in accordance with the 
 testimony of witnesses produced by the parties, and under rules 
 of law as to its admissibility laid down by the court. When this 
 change is accomplished, however, we find the jury still in con- 
 trol of the damages in tort, not in the primitive way of reporting 
 what damage has been done, but of ascertaining from the 
 evidence what it is. It is now said that in actions of tort the 
 jury have a "discretion" as to the quantum of damages; that is, 
 that while both in tort and contract the rules of law are binding 
 upon the jury, in tort the jury may (within certain limits) give 
 such damages as they think proper. 
 
 If the process had stopped here, it might be supposed that this 
 "discretion" was nothing more nor less than the remains of the 
 early arbitrary power of the jury in all cases, and that, as it had 
 been eradicated in contract, so too it would in time disappear 
 in tort. 
 
 Such, however, has not been the result. Although forms of 
 action and rules of pleading have been swept away, and although 
 even in many jurisdictions it has long been unnecessary in fram- 
 ing a cause of action to state whether the defendant is sued in 
 tort or contract, the distinction is still recognized as of binding 
 force wherever the common law exists.' It is a matter of the 
 
 • In Massachusetts the declaration must state whether the action sounds 
 in tort or contract. In New York this is not required. Nevertheless, the 
 
TORT AND CONTRACT. 39 
 
 commonest occurrence for a judge on appeal in cases of tort to 
 say, "These are not the damages which I should have given, had 
 I been on the jury, biit the jury have decided the matter and I 
 cannot interfere." 
 
 For this persistence in the control of the jury over tort and 
 the development of a "discretion" not existing elsewhere, there 
 must obviously be some reason growing out of a difference in the 
 nature of tort and contract, and such, now that forms of action 
 and special pleading have disappeared, can readily be seen to be 
 the case. Now that most purely technical rules are gone, and the 
 recovery corresponds with the right, what may be termed the 
 natural division between tort and contract comes into view. This 
 Une is one growing out of the nature of the injury inflicted by 
 the act or omission complained of. 
 
 All substantial injuries may be broadly divided into such as 
 are naturally estimated by a pecuniary standard, and such as are 
 not. The former embrace all ordinary cases of contract, and all 
 injuries to property, where there are no circumstances of aggra- 
 vation growing out of the character of the act. A trespasser, for 
 instance, upon land, breaks down a fence. The damages are 
 the cost of repairing the fence; the repairs once paid for, the 
 landowner is no worse for the trespass. But suppose that the 
 trespass involves insulting conduct, and an assault and battery 
 resulting in an illness ; not only has there been pecuniary dam- 
 age, measured by the cost of repairs, and medical expenses, but 
 injury to the feelings, violence to the person, and physical pain. 
 Now for these last three the law can furnish no rule of recovery. 
 It is obviously a matter of good sense and discretion to determine 
 how much non-pecuniary damage there has been, and how much 
 money shall be paid for it. Once decided, unless the discrepancy 
 between the damages allowed and the facts as to the injury 
 proved is very glaring, it is impossible for any tribunal of review 
 to say that it is wrong. 
 
 Bearing this, and the early history of the subject in mind, we 
 should expect to find that with the disappearance of the strict 
 rules of pleading and the forms of action, the discretion of the 
 
 relation of court and jury as to damages in tort and contract respectively 
 in the two States is the same. 
 
40 ELEMENTS OF THE LAW OP DAMAGES. 
 
 jury would be confined to cases of injury which are not naturally 
 measured in money, and that all others would be governed by 
 fixed rules. If this is not substantially the law to-day, it is 
 certainly towards this goal that the law is in -every direction' 
 tending, and it is the goal which it has in many cases reached. 
 In other words, in all cases of injury naturally measured in 
 money, whether arising from breach of contract, or invasion of 
 property rights, there is a growing assimilation of the rules in 
 tort and contract. In all other cases the line of division between 
 the two exists, and must, apparently, continue to exist. 
 
 It is unnecessary to discuss here in detail the principles upon 
 which the discretion of the jury is exercised. In some juris- 
 dictions, the damages which it gives for non-pecuniary injuries 
 (i. e., pain, mental suffering, etc.) are treated as strict compensa- 
 tion. That is, in theory, the sum of money awarded corresponds 
 exactly with the injury inflicted, notwithstanding that the jury is 
 spoken of as having a discretion as to the amount. In others 
 they have the right to give in addition to compensation for such 
 injuries in aggravated cases of wrong, — where the act is charac- 
 terized by circumstances of insult, outrage, oppression, or reck- 
 lessness, — what are called "exemplary" damages, intended at 
 once to redress the outrage and to punish the defendant. This 
 doctrine, shows the clearest traces of the jury's former com- 
 prehensive power. 
 
 One principle as to the discretion of the jury is universally 
 established at the present day. It is no longer, as it once was, 
 arbitrary. In cases of damages for non-pecuniary injury, and 
 even in those in which exemplary damages are allowable, it is 
 restrained by another principle, — that the verdict must neither 
 be plainly inadequate nor plainly excessive. In such cases it 
 is assumed by the court that it is the result either of prejudice, 
 passion, or ignorance, and is not allowed to stand.^ 
 
 ' The case must be clear, the proof justifying no other conclusion. 
 Longan v. Welmer, 180 Mo. 322; 64 L. R. A. 969. 
 
CHAPTER V. 
 
 CAUSE AND CONSEQUENCE 
 
 The rule of certainty separates hypothetical and speculative 
 damages from those which are capable of the proof required by 
 law, and precludes recovery for the former. Closely connected 
 with it is the rule by means of which the responsibility for the 
 consequences of acts is determined, — that of proximate cause. 
 
 That considerable confusion exists on this subject is not to be 
 denied. Judges have frequently recognized it with regret, and 
 innumerable efforts have been made to place the matter upon a 
 clear footing, which have not been altogether successful. The 
 difficulty arises from its inherent complexity. The question of 
 proximate cause involves not only the relation of cause and 
 effect as it exists in nature, but this relation as it is affected by 
 the principle of legal liability for consequences. It presents, 
 moreover, at the outset, two distinct legal questions : first, is an 
 observed effect so connected with a human agency that the latter 
 must in law be held responsible for it ? second, liability in law 
 for an act being established, how far in the sequence of its 
 effects is the burden of this liability to extend ? 
 
 The view taken by the law of the relation of cause and effect in 
 nature does not differ from that ordinarily acted upon in the 
 affairs of life ; in fact, it may be said to follow it closely. But the 
 question which has to be answered in a court of law is partly one 
 of cause and effect, partly one of proof, partly one of public 
 policy, and partly one of the nature of the wrong complained of. 
 
 The following broad line of division distinguishes the cases. 
 An injury has been suffered by A., and one of the contributing 
 causes is alleged to be the act or omission of B. Is B. liablef 
 There is no question here as to the proximateness or remoteness 
 of particular items of damage. In all other cases the liability for 
 
42 ELEMENTS OF THE LAW OF DAMAGES. 
 
 some consequences is established, and the question now is, to 
 what heads of damage does the liabiUty extend ? 
 
 In the first class of cases, there are two questions, — first, is 
 the caitse proximate ? second, does legal liability attach ? 
 
 It is in the second class of cases that the division of damages 
 into direct, proximate, consequential, and remote becomes of 
 importance. 
 
 The action is to recover for damage to wool, delivered to a 
 carrier for transportation from S. to A. The facts are that 
 owing to the carrier's negligence, the wool arrived six days late 
 at A., and while there was submerged by a sudden flood. The 
 wool was intended to go to a further point, and but for the delay 
 would have gone on and escaped the flood. The carrier is not 
 liable. The flood is the proximate, the carrier's negUgence the 
 remote cause of the injury.' 
 
 An aeronaut ascends in a balloon and descends in plaintiff's 
 garden. He is in a perilous situation, and calls for help. A 
 crowd thereupon breaks through the fence into the garden, and 
 beats and treads down the fruit and vegetables. The aeronaut 
 is responsible not only for the damage done by the balloon, but 
 for that done by the crowd.^ Here some liability for the tres- 
 pass does not admit of dispute ; the question to be settled was 
 whether the law would go further and treat the damage done 
 by the crowd as a consequence of the cause of action, entailing 
 responsibility. 
 
 In an action of slander, the words proved charge the plaintiff, 
 a minor, about eighteen years old, living with her father, with 
 vicious conduct. The complaint states that within a month of 
 the slander, the plaintiff's father had promised her a silk dress, 
 and a course of music lessons, and after having heard the charge, 
 he refused to perform the promise. The evidence is that the 
 father disbelieved the charge. The action cannot be sustained; 
 
 ' Denny v. N. Y. C. R. R., 13 Gray, 481. For cases to the contrary see 
 Read v. Spaulding, 30 N. Y. 630; Bibb Broom Com Co. v. Atchison, T. & 
 ,S. F. Ry. Co., 94 Minn. 269 ; 69 L. R. A. 509. The flood would have taken 
 place in any case, and the negligence could not have affected this risk, it 
 being assumed that the flood could not have been foreseen. 
 
 ' Guille V. Swan, 19 Johns. 381. 
 
CAUSE AND CONSEQUENCE. 43 
 
 such treatment of a daughter Is not a proximate result of a 
 slander which is disbelieved.' 
 
 So far as human acts are concerned, the fundamental assump- 
 tions of the law are : 1st, that the will is free ; 2d, that every one 
 is hable for the natural consequences of his acts. When it is 
 said, however, that the law assumes the will to be free, no more 
 is meant than that under ordinary circumstances, the individual 
 is assumed to have a freedom of choice, and is consequently 
 responsible for what he does. Experience shows that this prin- 
 ciple does not always hold true ; and that cases frequently arise 
 in which the will is acted upon so powerfully by the will of others 
 that it becomes irresponsible, and in such cases the law holds the 
 third person as responsible who has produced the result, — not 
 the intermediate person, through whose immediate acts the 
 injury has arisen. In the so-called Squib case ^ the defendant 
 throws a hghted squib into a market-house. It falls upon the 
 stall of A. He* to save himself throws it upon the stall of B. 
 B. also throws it away, and it strikes the plaintiff and puts out 
 his eye. The defendant is responsible. The action of the 
 intermediate agents is regarded as involuntary. 
 
 On this principle it was attempted in a recent case in New 
 York " to hold the defendant responsible for the consequences 
 of a dynamite explosion wiKuUy caused by a third person in 
 an attempt to murder him. Defendant being threatened with 
 dynamite was alleged to have interposed the plaintiff's body 
 between himself and the danger, using it as a shield; but there 
 was no proof that but for this the resulting injuries would not 
 have occurred and the cause was therefore held not to be 
 proximate. 
 
 Wherever the independent act of a third party intervenes, 
 " this interrupts the chain of causation. It is often a nice question 
 whether such interruption has been caused or not. An action, 
 for instance, is brought for injury caused by an explosion of 
 nitroTglycerine. The ground of liabiUty relied upon is the 
 storage of the nitro-glycerine by S. in a magazine on the defend- 
 
 » Anon., 60 N. Y. 262. 
 
 2 Scott V. Shepherd, 2 Wm. Bl. 892. 
 
 » Laidlaw v. Sage, 158 N. Y. 73; 44 L. R. A. 216. 
 
44 ELEMENTS OF THE LAW OP DAMAGES. 
 
 ants' lands, with their consent. The explosion takes place, not 
 in the magazine, but at a distance from it, through the negligence 
 of B., an incompetent servant of S., but still on defendant's 
 lands. B. was, under S.'s orders, removing the nitro-glycerine, 
 but not for a purpose connected in any way with the consent 
 given to store it on defendant's lands. The cause is remote, and 
 there is no UabiUty.' On the other hand. A., through B.'s fault, 
 has received an injury, which without a surgical operation will 
 cause his death. He employs a competent surgeon, through 
 whose mistake the operation is not successful, and the patient 
 dies. The proximate cause of his death is not the surgeon's 
 error, but B.'s tort.^ 
 
 The question of proximate cause as affected by volition may 
 present itself in a slightly different way in contract and in tort. 
 Under contracts of life insurance, excepting cases of death by 
 one's own act, many courts hold that if suicide occurs owing to 
 such a frame of mind that the deceased is not criminally responsi- 
 ble for it, he does not cause death by his own act. The question 
 here is, what Was the intention of the parties ? On the other 
 hand, where injuries resulting from a tort render a person 
 insane, and he while in this condition kills himself, it would 
 seem that the tort was the proximate cause of his death and that 
 an action for the death would lie. In a Massachusetts case' 
 it has been held that if the suicide though insane knows the 
 purpose and physical effect of his act, then it is a new and 
 independent agency which breaks the chain of causation. 
 
 In such cases the question of proxirhate cause is generally 
 presented free from complication with the question how far the 
 law will trace the consequences of an act; and the reason is that 
 it is the damage itself as a whole which raises the question. 
 
 In all other cases, however, the matter is very different. The 
 question of liability is determined at the outset by the existence 
 or non-existence of a right of action. If in Contract, there has 
 been a breach, if in an action for defamatipn there has been a 
 
 • Cuff V. Newark & N. Y. R. R. Co., 35 N. J. L. 17. 
 ' Sauter v. N. Y. C. & H. R. R. R. Co., 66 N. Y. SO. 
 » Daniels v. N. Y., N. H. & H. R. R. Co., 183 Mass. 393; 62 L. R. A. 
 751. 
 
CAUSE AND CONSEQUENCE. 45 
 
 libel, if in a case of interference with real property rights there 
 has been a trespass, a right of action exists which will at least 
 entitle the plaintiff to nominal damages, and the remaining 
 question is how far the law will trace the consequences of the 
 defendant's act. 
 
 It is frequently said that it is impossible for the law to com- 
 pensate for all the effects of a wrongful act,' because the imme- 
 diate results of any act are soon complicated by the intervention 
 of new causes, themselves producing new effects, so that we 
 cannot say that a given effect was, in the order of nature, pro- 
 duced by a given cause. But this is not the only reason. The 
 effort of the law is to establish a legal principle of liability for 
 consequences, and for this purpose it estabhshes certain rules, 
 according to which it declares that where a certain connection 
 of cause and effect exists there is liability, otherwise there is 
 none; that Uability for consequences being estabUshed by a 
 wrongful act, certain damages shall be allowed, and certain 
 others shall not. The rules of exclusion already considered shut 
 out damages for reasons drawn from the law itself, not from 
 nature. 
 
 It is, as has been just said, from the necessity of determining to 
 what heads of damage compensation for Uability decided by law 
 to exist shall extend, that damages are classified as direct, con- 
 sequential, proximate, and remote. Direct damages are those 
 which are so closely connected with the wrong complained of 
 that they may be said to be involved in the assertion of the right 
 of action. In the case of personal injury, bodily injury and pain ; 
 in that of libel, damage to reputation; in that of conversion, 
 loss of the thing converted; in that of trespass upon land, 
 damage to the property; in that of the breach of a contract, the 
 loss of the advantage which was the object of the contract, — are 
 all direct.^ Proximate damages (which' include direct damages) 
 are such as flow proximately from the cause of action, that is, 
 
 ' Fleming v. Beck, 48 Pa. St. 309, 313; Squire v. W. U. Tel. Co., 98 
 Mass. 232, 237. 
 
 ' The definition here given cannot be said to rest upon authority; it is 
 recommended by its convenience, and the fact that it follows the line of 
 natural classification. 
 
46 ELEMENTS OF THE LAW OP DAMAGES. 
 
 are so connected with it as results of it, that the law regards the 
 person responsible for the cause of action as reponsible also for 
 them. Remote damages are all other results not so connected. 
 
 Consequential damages properly speaking are distinguished 
 from direct, and are damages suffered in consequence of them. 
 They are either proximate, in which case they are recoverable, or 
 remote, in which case they are excluded. The term consequential 
 damages is, however, perhaps most frequently used, as will be 
 explained presently, to designate damages arising from conse- 
 quences of a special kind, — those in contract. 
 
 In other words, every cause of action may produce damages 
 which are (a) direct, (6) consequential. Direct damages must 
 be proximate and recoverable. Consequential damages may be 
 proximate and consequently recoverable; they may be remote 
 and excluded. 
 
 These are not the only terms used by the courts to discriminate 
 consequences for which recovery may be had from those for 
 which it may not be allowed. Damages are allowed, as being 
 the "normal," "natural," "necessary," or "probable" results 
 of a cause of action, and these epithets involve their opposites as 
 qualifications of such damages as are not recoverable. The 
 advantage of restricting ourselves to the terms direct, proximate, 
 consequential, and remote, is that while these have abundant 
 sanction in authority, they are exhaustive, and more definitely 
 descriptive than any other. Consequential damages are often 
 called "special" because in most cases, to be allowed they have 
 to be claimed specially, while " general " damages need not be 
 set up.' This, however, is a mere matter of pleading, and 
 does not affect the relation of the injury to its cause. 
 
 Finally, damages are called consequential in Eminent Do- 
 main cases, when they cannot be recovered under the statute, 
 though they are plainly proximate effects of the act complained 
 of. This, however, is peculiar to the field of Eminent Domain, 
 and has no bearing on the matters discussed in this chapter. 
 
 The question of liability being settled, the direct effect of the 
 
 ' For example, in Gibbs v. Cruikshank, L. R. 8 C. P. 454, the same 
 damages are referred to by Brett, J., as "consequential," by Keating, J., 
 aa "special;" both epithets are correct. 
 
CAUSE AND CONSEQUENCE. 47 
 
 act complained of, i. e., either the immediate result, or such 
 damages as are logically involved in the statement of the cause of 
 action, is always subject for compensation. 
 
 Rule. 
 8. Direct damages are always recoverable. 
 
 Illustrations. 
 
 (a) A package sent by a carrier is lost. The carrier is responsible 
 for the loss of the jewels contained in it, although he had no knowl- 
 edge of the nature of the contents.' 
 
 (6) An assault and battery results in closing up the plaintiff's 
 tear passage, thus injuring his eyes. This is a direct damage ; the 
 cause of action is personal injury.^ 
 
 (c) An assault and battery renders the plaintiff subject to fits. 
 This is a direct result.^ 
 
 (d) A physical injury stimulates a pre-existing tendency to dis- 
 ease and causes an outbreak. The defendant is responsible for 
 the ensuing damage even though the tendency was caused by 
 plaintiff's voluntary intemperance.* 
 
 (^ The action is by a railway company for maliciously causing 
 the arrest of its engineer, while engaged in running plaintiff's train. 
 The damages claimed include the delay of the train. These dam- 
 ages are direct.' 
 
 (/) The action is for firing at a canoe of negroes about to board 
 a ship off the African coast, the ship having gone there to trade, 
 and this being also the object of the negroes in coming off. The 
 damage claimed is the loss of the trade. This is direct.® 
 
 ' Little V. Boston & Me. R. R. Co., 66 Me. 239. 
 
 ' Blake v. Lord, 16 Gray, 387. 
 
 » Sloan V. Edwards, 61 Md. 89. 
 
 * Maguire v. Sheehan, 117 Fed. 819; 59 L. R. A. 496. 
 
 » St. J. & Lake C. R. R. Co. v. Hunt, 55 Vt. 570. 
 
 " Tarleton v. McGawley, Peake N. P. 270. Lord Kenton does not call 
 the damages direct, but as the question was, Were the defendants liable? 
 and the interference with the trading was all that gave the right of action 
 (the act of firing on the negroes being, as between the plaintiff and defend- 
 ant, otherwise entirely indifferent), the case seems a fair illustration of 
 damages involved jn the concgption of the injury alleged as the cause of 
 action. -• '■'^ p. 
 
48 ELEMENTS OF THE LAW OF DAMAGES. 
 
 (g) The action is for breach of contract of sale by vendor. The 
 plaintiff recovers the value of the article not delivered.^ 
 
 It will be found that wherever there exists a well-defined rule 
 of law stating the measure of damages in a given kind of action 
 (e. g., sales, negotiable instruments), what this rule states as the 
 measure of damages are the direct, natural, or usual damages 
 involved in the conception of the particular loss in question, 
 without regard to special circumstances. 
 
 In the great majority of cases there is no dispute about direct 
 damages. The main difficulty is to determine how far respon- 
 sibility extends for results which are in one sense indirect, being 
 produced by the efiicient cause of action in conjunction with 
 other causes. 
 
 In such cases the question is, Are the damages proximate or 
 remote; do they result proximately or remotely from the cause 
 of action ? And here the matter presents a different aspect ac- 
 cording as the action is one of tort or contract. For although the 
 sequence of cause and effect cannot depend upon the form of the 
 action, there is an inherent difference between tort and contract, 
 from the fact that in one the question is primarily of responsi- 
 bility for an axd or omission; in the other, of compensation fdJthe 
 value of a barga^in or promise. In the former the right to damages 
 does not spring from an engagement entered into between the 
 parties, but rests on a general rule that every one is responsible 
 for the consequences of his acts; in the latter he is responsible 
 simply for the breach of a promise to do or not to do some 
 particular thing, and it is the value of this promise that he is 
 answerable for. This difference explains many seeming incon- 
 sistencies in the cases. 
 
 The two questions — 1, that of liability; 2, that of the extent 
 of the liabihty — will here be considered ; first, as they present 
 themselves in tort; second, in contract. 
 
 TORT. 
 
 The first question in many, if not most, cases of tort, as has 
 been already noticed, is whether the damage is so connected with 
 
 ' Marsh v. McPherson, 105 U. S. 709. 
 
CAtrSE AND CONSEQUENCE. 49 
 
 the act complained of as to give rise to an action. This is true of 
 all those cases of tort in which damage is the gist of the action ; in 
 them the damages are usually coterminous with liabiUty. Of 
 these the principal division is cases of negligence ; here, the want 
 of care being proved, and also the damage to the plaintiff, the 
 question is. Does the law consider the connection between the 
 two to be so close as to make the defendant responsible ? This, 
 like many other legal questions, is in part a matter of observation 
 and experience. 
 
 In actions of tort the condition of mind of the defendant is of 
 no moment on the question of Uability. Whether he foresees the 
 results of his acts or not he is equally responsible for them. A. 
 may knock B. down, and the result months afterwards may be 
 paralysis or death. A city may leave a street out of repair, and 
 an accident may happen entailing consequences equally serious, 
 or, on the other hand, entirely trivial. As has been said by the 
 New York Court of Appeals, nothing short of omniscience can 
 make it possible to predict the consequences of a tort.^ 
 
 It is sometimes said that the defendant's responsibility in tort 
 extends only to results which might reasonably have been antici- 
 pated by him ; ^ but this can only mean that all the consequences 
 in the ordinary sequence of nature ought to be considered as 
 within his contemplation, — humanly speaking, an impossibility. 
 For the purpose of fixing liability no inquiry is permitted into 
 what he did or did not anticipate.' 
 
 It often happens that there is more than one proximate cause 
 of the same effect, and here great difficulty sometimes arises. In 
 a New York case,* speaking of highway accidents, the Court of 
 
 ' Ehrgott V. The Mayor, 96 N. Y. 264, 281. 
 
 ' Morrison v. Davis, 20 Pa. St. 171 ; Oilman v. Noyes, 57 N. H. 627. 
 
 » Cf. Stevens v. Dudley, 56 Vt. 158, with Sharp v. Powell, L. R. 7 C. P. 
 253, and Clark v. Chambers, 3 Q. B. D. 327; Chicago & Alton R. R. Co. 
 V. Pennell, 110 111. 435. When it is said that an intervening flood or fire 
 could not be reasonably anticipated, no more is meant than that a flood 
 or fire was out of the ordinary course of nature, and broke the regular or 
 normal sequence of cause and effect. Hoadley v. Northern Transporta- 
 tion Co., 115 Mass. 304. 
 
 * Ring V. Cohoes, 77 N. Y. 83, 88, 90. Ace. The Joseph B. Thomas, 
 56 U. S. App. 619; 46 L. R. A. 58. 
 
 4 
 
50 ELEMENTS OF THE LAW OF DAMAGES. 
 
 Appeals has said: "When two causes combine to produce an 
 injury to a traveller upon a highway, both of which are in their 
 nature proximate, the one being a culpable defect in the highway, 
 and the other some occurrence for which neither party is respon- 
 sible, the municipality is liable, provided the injury would not 
 have been sustained but for suxih defect." And again: "When 
 several proximate causes contribute to an accident, and each is 
 an efficient cause, without the operation of which the accident 
 would not have happened, it may be attributed to all or any of 
 the causes ; but it cannot be attributed to a cause unless without 
 its operation the accident would not have happened." The 
 general rule may be laid down as follows, but in the appUcation 
 of it, it must be observed that by "independent agent" is not 
 meant that any and every intervening human agency is regarded 
 as an interrupting and new cause. The human agency which 
 intervenes may not interrupt, but merely be another link in the 
 chain. If a stranger interferes, the defendant may or may not 
 be liable. The defendant's negligence may still be or not be the 
 effective cause of the accident.' 
 
 Rule. 
 
 9. Legal responsibility in tort^xtends to any injurious conse- 
 quence resulting by or^hiary natural sequence, whether 
 foreseen by the wrongdoer or not, provided that the opera- 
 tion of the cause of action is not interrupted by the irder- 
 vention of an indepsadent agent or overpowering force, 
 and that but for the operation of the cause of action the 
 consequence would not have ensued. 
 
 Illustrations. 
 
 (o) A. while at a fair receives injuries by collision with a runa- 
 way team, the horses being driven by S. The facts are that the 
 defendant, one of the fair officials, while clearing the track for a 
 trial of speed, turns S. with his team off the track; in the act of 
 turning, S. is thrown out of his carriage, the horses break loose, run 
 
 » Engelhart v. Farrant, [1897] 1 Q. B. 240. Cf. McDowall v. Great 
 Western Ry. Co., [1903] 2 K. B. 331. 
 
CAUSE AND CONSEQUENCE. 51 
 
 against A.'s carriage, and cause the injuries. The jury is charged 
 in substance that the liability depends on whether the defendant 
 had reasonable cause to expect or judge that his act would result 
 in damage. On appeal a new trial is granted; the plaintiff's ex- 
 pectations or judgment have nothing to do with the matter.' 
 
 (6) Fire falls from the locomotive of an elevated road upon a 
 horse attached to a wagon in the street below, and upon the hand 
 of the driver. The horse becomes unmanageable, runs on to the 
 sidewalk, and injures the plaintiff. The negligence of the railroad 
 company is the proximate cause of the injury.^ 
 
 (c) A., having had a quarrel with a boy, takes up a pickaxe and 
 pursues him into B.'s store. To save himself the boy runs behind 
 the counter, and in so doing knocks out the faucet from a cask of 
 wine, and some of the contents is lost. B. can recover the value of 
 the wine from A.* 
 
 (d) A. is taking care of B.'s mare in a field, between which and 
 a field occupied by a cricket club is a wire fence. A.'s servant 
 neghgently leaves open a gate between the two fields and the mare 
 strays into the cricket field. Members of the club endeavor in a 
 careful and proper manner to drive her back, but the mare runs 
 against a fence and is injured. The injury is the natural conse- 
 quence of the gate having been left open, and the defendant. A., 
 is Uable.'' 
 
 (e) Owing to a defect in a street a traveller is thrown out of his 
 carriage, dragged over the dashboard, has to procure another 
 carriage, and is exposed for some time to the cold and rain. From 
 the exposure he contracts a serious disease. The city is responsible 
 for this consequence of the accident.'' 
 
 (/) V. is under a duty to transport W. to California by way of 
 the Isthmus of Panama, but fails to furnish transportation across 
 the isthmus. After some delay W. is taken back to his starting- 
 point, but meantime, owing to the unhealthy climate of the isthmus, 
 has contracted an illness. V. is liable for loss of time and expense 
 caused by the illness,* 
 
 » Stevens v. Dudley, 56 Vt. 158. 
 
 " Lowery v. Manhattan Ry. Co., 99 N. Y. 158. Cf. Hinchman v, Pere 
 Marquette R. R. Co., 136 Mich. 341; 65 L, E. A. 653, 
 a Vandenburgh v. Truax, 4 Den. 465. 
 ' Halestrap v. Gregory, [1895] 1 Q. B. 561. 
 e Ehrgott v. The Mayor, 96 N. Y. 264. 
 • Williams v. Vanderbilt, 28 N, Y. 317, This case is one of contract 
 
52 ELEMENTS OF THE LAW OF DAMAGES. 
 
 (g) A., in occupation of certain premises abutting on a private 
 road, erects a barrier at the entrance without right. Part of this 
 barrier, consisting of a chevaux de frise, is removed from its position 
 by a third person, and put in an upright position across the foot- 
 path. B. is lawfully proceeding at night along the footpath when 
 he comes in contact with the chevaux de frise, and his eye is put out 
 by one of the spikes. A. is responsible ; the act of the third person 
 in removing the unlawful obstruction was a natural result of the 
 defendant's own act in placing it there.* 
 
 (h) A. negUgently leaves his cart and horse unattended in the 
 street. B., a child, gets upon the cart in play, while another child 
 leads the horse on. B. is thrown down and hurt. A. is responsible ; 
 in a child such behavior is nothing more than natural.^ 
 
 (i) Defendant's servants leave vehicles on an incline, so 
 braked that they cannot move. Boys trespassing unscrew the 
 brakes, causing a vehicle to run down the incline and injure the 
 plaintiff. This was a probable and natural cause of danger, of 
 which the defendants had warning, but there was no proof that the 
 risk might have been avoided. Verdict for plaintiff cannot be 
 supported.' 
 
 (j) A., a druggist, sells to B., also a dealer in drugs, a jar of ex- 
 tract of belladonna (a deadly poison) labelled "extract of dande- 
 lion" (a harmless medicine). B. sells the jar to C, a third dealer, 
 and C. sells a portion on a physician's prescription of dandelion to 
 D., who is poisoned. A. is Uable to D.* 
 
 (k) A., a bottler of champagne cider, sells to a customer whose 
 employee loses an eye through the explosion of a bottle. There 
 was no reason to expect any accident. He is not liable to the 
 employee.^ 
 
 (l) A. sells hogs known to be infected with a dangerous and 
 infectious disease to an innocent purchaser who resells to B. B., 
 
 against a carrier, but as to the point for which it is here cited, is not dis- 
 tinguishable from tort. 
 
 ' Clark V. Chambers, 3 Q. B. D. 327. 
 
 ' Lynch v. Nurdin, 1 Ad. & El. (n. s.) 29. Had the plaintiff been an 
 adult it would have been a clear case of contributory negligence. Cf. 
 Engelhart v. Farrant, [1897] i Q. B. 240. 
 
 = McDowell V. Great Western Ry., [1902] 1 K. B. 618; [1903] 2 K. B. 
 331. 
 
 ' Thomas v. Winchester, 2 Seld. 397. Cf. Peters v. Johnson, 50 W. Va. 
 644; Standard Oil Co. v. Wakefield, 102 Va. 824; 66 L. R. A. 792. 
 
 » O'Neill V. James, 138 Mich. 567; 68 L. R. A. 342. 
 
CAUSE AMD CONSEQUENCE. 53 
 
 without negligence, puts them in a pen with sound swine, which 
 contract the disease and die. B.'s damages include not only the 
 value of the hogs purchased, but that of the others.' 
 
 (m). By careless driving A.'s sled is caused to strike against the 
 sleigh of B. with such violence as to break it to pieces, throwing B. 
 out, frightening his horse, and causing the animal to escape from 
 the control of his driver, and to run round a corner, where he causes 
 damage to C. C. can recover for this against A.^ 
 
 (n) A.'s servant driving a wagon strikes the hind wheel of an- 
 other wagon standing by the curb and forces it against the horse. 
 The horse takes fright and runs on to the sidewalk, where B. is 
 standing. B., to avoid injury, jumps aside and breaks his leg. 
 Action by B. A nonsuit is improper.^ 
 
 (o) In an action for assault and battery questions are proposed 
 for submission to the jury founded on the theory that only such 
 damages can be recovered as the defendant might reasonably be 
 supposed to have contemplated as likely to result; the questions 
 are excluded. The ruling is correct.* 
 
 (p) A. makes an unlawful sale of liquors to B., who through 
 intoxication and consequent exposure dies. It is left to the jury 
 to say whether intoxication was a natural and probable conse- 
 quence of selling liquor in this case ; if it was, then the will of B. 
 is not an independent agency, and A. is responsible.^ 
 
 (q) The lessees of penitentiary convicts allow a dangerous con- 
 vict to be at large. They are not responsible for a tort committed 
 by him. The intervention of his independent will breaks the 
 chain of causation." 
 
 (r) Action for death caused by the careless loading of a car 
 by a shipper. The accident happened after it became the duty of 
 the railroad to inspect the car. Held, that no action lies.' 
 
 (s) A., a director of musical performances, hires B., a singer. 
 C. publishes a hbel concerning B., and she refuses to sing. A. 
 cannot recover the loss of receipts through her absence; her re- 
 
 ' Skinn v. Reutter, 135 Mich. 57; 63 L. R. A. 743. 
 
 ' McDonald v. SnelUng, 14 All. 290. 
 
 ' Collins V. W. Jersey Express Co., 72 N. J. L. 231; 5 L. R. A. (n. s.) 
 
 373. 
 
 Vosburg V. Putney, 80 Wis. 523. 
 
 Harrison v. Berkley, 1 Strob. 525. 
 
 Henderson v. Dade Coal Co., 100 Ga. 568; 40 L. R. A. 95 
 
 Fowles V. Briggs, 116 Mich. 425; 40 L. R. A. 528. 
 
54 ELEMENTS OP THE LAW OF DAMAGES. 
 
 fusal to sing may have come as well from a number of other 
 reasons.' 
 
 (t) In an action for assault and battery the plaintiff offers 
 evidence to prove that by reason of it he lost a position to which he 
 was about to be appointed. The evidence is not admissible; "one 
 of the intervening causes of the loss of the office appears to have 
 been a voluntary act of the plaintiff's own will, and there must also 
 have been the concurrent voluntary acts of other men." ^ 
 
 (u) A local custom makes lawful the erection of "Uberty poles" 
 in the streets of a city. Such a pole is erected, and is subsequently 
 broken by a wind of unusual violence, injuring plaintiff. The in- 
 jury is not a proximate consequence of the erection of the pole.' 
 
 (v) An electric Ught is placed by a lighting company, presum- 
 ably rightfully, near a trolley wire, and the globe is shattered by 
 a trolley leaving the wire. The plaintiff, injured by the glass, 
 cannot maintain an action against the company; the proximate 
 cause of the injury is the failure to keep the trolley on the wire, — 
 the intervening act of a responsible agent.* 
 
 (w) A jury finds in substance that the burning of A.'s mill and 
 lumber was the unavoidable consequences of the negligent burning 
 of B.'s elevator. This in effect is finding that there is no intervening 
 and independent cause between the negligent act and the injury.* 
 
 (x) A. sues B. for personal injuries, alleging that the latter, to 
 protect himself from C. engaged in threatening his death with dy- 
 namite, interposed the plaintiff's body using it as a shield against the 
 explosion which ensued. FaiUng in proof that but for this act the in- 
 juries would not have occurred, the alleged cause is not proximate.* 
 
 (y) A broken window is negUgently left in such a condition that 
 the glass is likely to fall out ; an ordinary wind blows broken glass 
 out causing an injmy. The wind is not the proximate cause of the 
 injury.' 
 
 (2) A passenger is wrongfully carried beyond her station, and 
 the conductor of the train secures a room for her for the night at a 
 
 ' Ashley v. Harrison, 1 Esp. 48. 
 ' Brown v. Cummings, 7 All. 507. 
 " City of Allegheny v. Zimmerman, 95 Pa. St. 287. 
 Nelson v. Narragansett Electric Light Co., 26 R. I. 258; 67 L. R. A. 
 
 116. 
 
 5 
 
 Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469. 
 
 Laidlaw v. Sage, 158 N. Y. 73; 44 L. R. A. 216. 
 
 Detzur v. B. Stroh Brewing Co., 119 Mich. 282; 44 L. R. A. 500. 
 
CAUSE AND CONSEQUENCE. 55 
 
 hotel, agreeing to pay her expenses. A kerosene lamp given to her 
 by the hotel proprietor or his servants explodes during the night 
 and she is badly burned. The negligence of the railway is not the 
 proximate cause of the injury; the case is that of the intervention of 
 an independent agency.' 
 
 (aa) An executor attempts the transfer of stock of his testator 
 under the will on corporation books. The corporation is charge- 
 able with notice of the will, and if the transfer is wrongfully made 
 with its assent, this assent is the proximate cause of any loss which 
 ensues.^ 
 
 (66) A railway company undertakes the care of an employee suf- 
 fering from smallpox. He escapes and communicates the disease. 
 The railway company is responsible.' 
 
 (cc) A. unlawfully and maliciously shoots at and wounds a dog ; 
 the dog rushes into a house and injures a woman by throwing her 
 down. A. is Uable.* 
 
 (dd) Defendants, newspaper proprietors, advertise in their news- 
 paper that their city editor will give readers financial advice. 
 Plaintiff writes asking for a safe investment for £800, and the 
 name of a "good stockbroker." The editor recommends an -unfit 
 person, not making proper inquiries which would have revealed 
 his unfitness. Plaintiff sends £1,400, which are immediately mis- 
 appropriated by the broker. Held, that defendants are responsi- 
 ble for the whole loss. They made themselves responsible for due 
 care in selection, and the cases as to the intervention of a crime 
 do not apply. ^ 
 
 In British Columbia Saw Mill Co. v. Nettleship,* Willes, J., 
 mentions as contrary to common-sense a case said to have been 
 
 > Cent, of Ga. Ry. Co. v. Price, 106 Ga. 176; 43 L. R. A. 402. Besides 
 this, it was not within the scope of the conductor's authority to make the 
 proprietor of the hotel the agent of the company for the purpose of taking 
 care of the plaintiff during the night. Ibid. 
 
 2 Wooten V. Railroad, 128 N. C. 119; 56 L. R. A. 615. 
 
 ' Missouri K. & T. R. Co. v. Wood, 95 Texas, 223; 56 L. R. A. 592. 
 
 < Isham V. Dow, 70 Vt. 588; 45 L. R. A. 87. 
 
 » De la Bere v. Pearson, Ld., [1908] 1 K. B. 280. Much doubt was 
 expressed by two of the judges as to whether the damages should not be 
 limited to £800; but this was solely a question as to the proper interpre- 
 tation of the contract as proved. 
 
 » L. R. 3 C. P. 499, 508. 
 
56 ELEMENTS OF THE LAW OF DAMAGES. 
 
 decided "about two centuries and a half ago," in which a man 
 going to be married to an heiress, his horse having cast a shoe, 
 employs a blacksmith to replace it. The horse is lamed by 
 the blacksmith's want of skill, and the rider being delayed, the 
 lady marries another. The blacksmith is held liable for the loss 
 of the marriage. The proximate cause of the loss of the marriage 
 is, of course, the lady's change of mind, not the laming of the 
 horse. Nor is another marriage the proximate result of a delay 
 in the arrival of the bridegroom. Nor can it be said that but for 
 the delay the marriage would have been secured. 
 
 It is sometimes said that in cases of wilful or malicious wrong 
 the rule of remoteness is " relaxed ; " but this is an entire mistake. 
 The character of the wrong or condition of mind of the defendant 
 does not affect the question of proximate cause. The difference 
 is simply as to the measure of damages ; for where the tort is ma- 
 licious, exemplary damages may be recovered. This has nothing 
 to do, however, with the fact of the wrongdoer's responsibility 
 for consequences.' 
 
 Rule. 
 10. The question of proximate cause is for the jury? 
 
 Illustrations. 
 
 (a) Defendants negligently pile boards in a public highway, and 
 a wagon loaded with barrels is driven over them, producing a 
 noise which frightens plaintiff's horse. The horse, which is well- 
 broken and carefully driven, starts and throws plaintiff out of his 
 wagon, seriously injuring him. On these facts a nonsuit cannot 
 be granted; it is for the jury to say whether the defendant's acts 
 were the proximate cause of the injury.' 
 
 (6) The action is tort for deceit in the sale of a horse, induced 
 by false representations that he is "perfectly safe" and not "afraid 
 of the cars." The plaintiff claims damages for a personal injury 
 suffered from an accident, caused through the horse running away 
 
 ' Ind., Peru, & C. Ry. Co. v. Pitzer, 109 Ind. 179. 
 
 ' West Mahanoy v. Watson, 112 Pa. St. 574; Kreuziger v. Chicago, 
 etc. R. Co., 73 Wis. 168; Waterman v. Chicago & A. R. R. Co., 82 Wis. 
 613; Chicago, etc. R. Co. v. Pennell, 110 111. 435. 
 
 ' Lake v. Milliken, 62 Me. 240. 
 
CAUSE AND CONSEQUENCE. 57 
 
 from fear of cars. The jury is directed to return a verdict for the 
 defendant. The plaintiff is entitled to a new trial; the question 
 whether the fright or vice of the horse was the cause of the injury 
 should have been submitted to the jury.' 
 
 (c) In an action to recover for loss by fire caused by sparks from 
 a steamboat the court is requested to instruct the jury that if they 
 believe the sparks set fire to the building through the negligence 
 of the defendants, and the distance of the building was a given 
 number of feet, then the injury was too remote to afford a ground 
 for recovery. The court declines so to instruct the jury. This is 
 right; because the whole question of proximate cause and negli- 
 gence is for the jury.* 
 
 (d) The plaintiff, an employee in defendant's works, exposed to 
 danger through defendant's negligence, leaves a position of safety 
 and exposes himself to injury. His evidence is that this was done 
 by him in order to save the life of others. It is for the jury to say 
 whether his act was contributory neghgence which would defeat 
 the action, or whether the defendant's negligence was not the 
 proximate cause of the resulting injury suffered by plaintiff.^ 
 
 (e) A., through negUgence on his own premises, sets them on 
 fire. The fire by means of a wind prevailing at the time destroys 
 B.'s property. The court directs the jury to render a verdict for 
 A. on the ground that the negligence was not the proximate cause 
 of the injury. Held, error. The evidence tended to show that the 
 wind was not an intervening, efficient cause, and the question 
 should have been left to the jury.^ 
 
 (/) In a personal injury case a pre-existing tendency to dis- 
 ease may have aggravated the results of the injury, but this may be 
 a natural consequence, in which case the defendant is liable. Such 
 a question is for the jury.' 
 
 As in every other question of fact, however, if the court con- 
 siders the evidence so clear that there is nothing for the jury to 
 consider, it will decide the question itself. Hence questions 
 closely resembling each other will be decided differently in differ- 
 ent courts." Most of the cases lie between two extremes. At one 
 
 ' Allen V. Truesdell, 135 Mass. 75. 
 
 " Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469. 
 
 ' Maryland Steel Co. v. Mamey, 88 Md. 482; 42 L. R. A. 842. 
 
 * Lillibridge v. McCann, 117 Mich. 84; 41 L. R. A. 381. 
 
 « Chicago City Ry. Co. v. Saxby, 213 111; 274; 68 L. R. A. 164. 
 
 ' Cf. Milwaukee & St. Paul Ry. Co. v. Kellogg, above, and cases 
 
58 ELEMENTS OF THE LAW OF DAMAGES. 
 
 end of the line is a perfectly plain case for the court : for instance, 
 a boy buys gunpowder, and it remains in the legal custody of his 
 parents, or, in their absence, of his aunt, for some days. He then 
 fires some off and is injured. The injury is not the proximate 
 result of the sale, and on suit against the seller the jury must be 
 instructed that there is no legal and sufficient evidence to author- 
 ize them to find a verdict for the plaintiff.* At the other extreme 
 are cases such as those above cited. 
 
 Illustrations are perhaps most frequently afforded by cases of 
 fire communicated by defendant's negligence to premises more 
 or less remote. In a recent New York case, the negligence con- 
 sisted in allowing inflammable material to accumulate on a 
 corporation's right of way. Fire communicated to this spread 
 over lands of intervening owners for some two miles to land of 
 plaintiff, causing him daniage. The New York Court of Appeals 
 held that the evidence being undisputed, the question of proxi- 
 mate cause was for the court and, as a matter of law, that negli- 
 gence such as this is not the proximate cause of damage on land 
 separated from that on which the fire starts by property of inter- 
 vening owners. Two judges dissented.^ That part of the opinion 
 which limits responsibility ai an absolute matter of law to prop- 
 erty of abutters seems open to serious question. Wherever fol- 
 lowed, it would apparently involve, the consequence that, all the 
 other circumstances being precisely the same, the hmit of re- 
 sponsibility for the defendant's wrong depends on whether the 
 property injured was owned by one or several persons. Any 
 such rule seems wholly outside the question of proximate cause 
 and to be one of public policy.^ In a Massachusetts case, where 
 
 therein cited, with Ryan v. The N. Y. Central R. R. Co., 35 N. Y. 210; 
 Pa. R. R. Co. V. Kerr, 62 Pa. St. 353; Cole v. German S. & L. Soc, 59 
 C. C. A. 593; 124 Fed. 113; 63 L. R. A. 416; Haley v. St. Louis T. Co., 
 179 Mo. 30; 64 L. R. A. 295; Hebert v. Lake Charles I. L. & W. Co., Ld., 
 Ill La. 522; 64 L. R. A. 101. 
 
 ' Carter v. Towne, 103 Mass. 507. Ace. Griffin v. Jackson L. & P. Co., 
 128 Mich. 653; 55 L. R. A. 318, also a case of intervening human agency. 
 Cf. Gibson v. Torbert, 115 la. 163; 56 L. R. A. 98; Mo. Pac. Ry. Co. 
 V. Colmnbia, 65 Kan. 390 ; 58 L. R. A. 399. 
 
 ' Hoffman v. King, 160 N. Y. 618; 46 L. R. A. 672. 
 
 ' See dissenting opinion of Van, J. 
 
CAUSE AND CONSEQUENCE. 59 
 
 fire was communicated to plaintiff's property by a conflagration 
 on railroad property caused by the throwing away of a lighted 
 match, the question was taken from the jury by the court on the 
 ground of remoteness, though the reasoning of the dissenting 
 judge who thought that there was evidence for the jury seems 
 more convincing than thiat of the majority. It was at best a case 
 of doubt, and in such cases it would seem that the jury is the 
 tribunal to which to refer its solution.^ 
 
 It seems to be sometimes thought that the question of proxi- 
 mate cause ought always to be treated as one of law, and that 
 the only question for the jury is to ascertain the facts necessary 
 to the decision of the question by the court. The action is for 
 carelessly leaving bars down, owing to which sheep escape and 
 are devoured by bears. The plaintiff contends that the proxi- 
 mate cause is leaving the bars down; the defendant that the 
 connection of cause and effect is too remote. The trial court 
 instructs the jury that if they find the following facts, — that the 
 sheep escaped in consequence of the bars being down, and that 
 they would not have been killed but for the act of the defendant, 
 then he is hable, as a matter of law. On appeal, a new trial is 
 granted, on the ground that the whole question of proximate 
 cause should have been left to the jury, as a matter of fact.^ One 
 of the judges dissents on the ground that no undisputed fact is 
 left unsettled by the findings of the jury, and that the liability of 
 the defendant depends on a purely legal question whether, on the 
 facts stated, the act of the defendant is considered in law the 
 cause of the result. The difficulties surrounding the question of 
 cause and effect in such a case, as a matter of fact in nature, are 
 thus dwelt upon by the learned judge : 
 
 "The jury say the sheep would not have been killed by bears 
 but for their escape, and would not have escaped but for the 
 bars being left down. But it is equally certain, without any find- 
 ing of the jury, that they would not have been killed by bears if 
 the bears had not been there to do the deed ; and how many ante- 
 cedent facts the presence of the bears may involve, each one of 
 
 ' Stone V. Boston & Albany R. R. Co., 171 Mass. 536; 41 L. R. A. 794 
 (Knowlton, J., dissenting). 
 
 ' Gilman v. Noyes, 57 N. H. 627. 
 
60 ELEMENTS OF THE LAW OF DAMAGES. 
 
 which bore a causative relation to the principal fact sufSciently 
 intimate so that it may be said that the latter would not have 
 occurred but for the occurrence of the former, no man can say. 
 Suppose the bears had been chased by a hunter, at an indefinite 
 time before, whereby a direction was given to their wanderings 
 which brought them into the neighborhood at this particular 
 time; suppose they were repulsed the night before in an attack 
 upon the bee-hives of some farmer in a distant settlement, and to 
 escape the stings of their vindictive pursuers, fled, with nothing 
 but chance to direct their course, toward the spot where they met 
 the sheep ; suppose they were frightened that morning from their 
 repast in a neighboring cornfield, and so brought to the place of 
 the fatal encounter just at that particular point of time. Obvi- 
 ously, the number of events in the history, not only of those indi- 
 vidual bears, but of their progenitors, clear back to the pair that, 
 in instinctive obedience to the Divine command, went in unto 
 Noah in the ark, of which it may be said but for this the sheep 
 would not have been killed, is simply without limit." * 
 
 In an action brought by a master for the seduction of his ser- 
 vant, the gist of the action is the loss of service, and unless the 
 seduction be the cause of the loss of service there can be no re- 
 covery. In most cases the seduction is followed by pregnancy, 
 and sometimes by sexual disease.^ Here there is no question. 
 But a difficulty, which well illustrates the real nature of the 
 question of proximate cause, sometimes arises in cases where it 
 is alleged that the loss of service comes from mental distress 
 caused by the seduction, and occasioning an incapacity to labor. 
 Here, except in an extreme case, where there is no evidence to 
 warrant a finding, the matter is one for the jury.' Thus, there 
 is no pregnancy or sexual disease, but there is evidence of un- 
 usual mental distress and a bad condition of health. The jury 
 are instructed that to permit recovery they must be satisfied that 
 the failure of health was the immediate result of'the act, and that 
 
 ' Per Ladd, J., dissenting, in Oilman v. Noyes, 57 N. H. 627. 
 
 " "White V. Nellis, 31 N. Y. 405. 
 
 ' Man veil v. Thomson, 2 C. & P. 303; Abrahams v. Kidney, 104 Mass. 
 222; Boyle v. Brandon, 13 M. & W. 738; Knight v. Wilcox, 4 Kern. 
 413; Blagge v. Ilsley, 127 Mass. 191. 
 
CAUSE AND CONSEQUENCE, 61 
 
 there was a consequent loss of ability to render service. A ver- 
 dict for the plaintiff is sustained.' On the other hand, where on 
 all the evidence it appears that there was no loss of service for 
 three months after the seduction, and the loss of health appears 
 to have come from fear of exposure through a threatened prose- 
 cution of defendant, no action will lie.^ 
 
 In tort the term "consequential" damages is of little impor- 
 tance. They mean no more than such proximate damages as are 
 not direct. Such damages are frequently allowed in replevin,' 
 trespass,* and in all cases where the expense of avoiding the con- 
 sequences of the defendant's act is allowed.^ 
 
 Where the plaintiff recovers the value of property, as in 
 trover, at the present day he usually receives interest as well. 
 This, being given on account of the time during which the 
 plaintiff has been deprived of the use of the property, may be 
 said to represent consequential damages. Where he does not 
 recover interest, there seems no reason why he should not 
 recover the value of the use of the article, and so it has been held 
 in England." The article may have a special value, from the 
 fact of its having been resold at an advance. In such a case it 
 has been argued that notice ought to have been given in order to 
 hold the defendant for anything beyond the ordinary value ; but 
 this attempt at an inquiry into the state of the defendant's mind 
 has met with no success. The value of the article is a matter of 
 fact, unaffected by the fact of notice.' Indeed such special value 
 seems to present a case of direct damage. 
 
 CONTRACT. 
 
 The question of proximate cause generally arises in actions of 
 tort, when it is a question for the jury, but it may arise also in 
 actions of contract. In actions upon insurance policies, where 
 
 ' Blagge V. Ilsley, 127 Mass. 191. 
 
 ' Knight V. Wilcox, 4 Kem. 413. 
 
 ' Gibbs V. Cruikshank, L. R. 8 C. P. 454. 
 
 ' Bamum v. Vandusen, 16 Conn. 200. 
 
 ^ See chapter on Avoidable Consequences. 
 
 » Bodley v. Reynolds, 8 Ad. & El. 779. 
 
 ' France v. Gaudet, L. R. 6 Q. B. 199, 204. 
 
62 ELEMENTS OF THE LAW OP DAMAGES. ^ 
 
 the question of a breach depends on whether the ferU insured 
 against was the cause of the loss complained of, the question of 
 proximate cause is one of the interpretation of the contract, and 
 hence for the court. A fire occurs in the tower of a building 
 used for generating electricity; it is not communicated to the 
 rest of the building and is speedily extinguished. It causes, how- 
 ever, electrical disturbances, which result in damage to the 
 machinery in another part of the building. This is a " loss or 
 damage by fire" within the meaning of the policy.' 
 
 A cargo of 6,500 bags of coffee is insured on a voyage from 
 South America to New York, against the perils of the sea, but 
 there is a warranty in favor of the underwriters that they are 
 "free from all consequences of hostilities" (a state of war existing 
 at the time between the United States and the Southern Confed- 
 eracy). On the voyage the master, being out of his reckoning, 
 goes ashore south of Cape Hatteras. Until recently there had 
 been a light there, but this had been taken away for the purpose 
 of harassing Northern ships. The ship is boarded by officers, and 
 the captain and crew detained as prisoners. Of the coffee 150 
 bags are saved by "salvors," officers appointed for the purpose; 
 all the rest is lost ; but it appears that 1 ,000 bags of it might have 
 \been saved, but for the interference by Southern troops ; on these 
 racts the proximate cause of the loss is not the extinguishment of 
 th^ light (an act of hostility) but a peril of the sea. As to 1,000 
 bagX^ which might have been saved, however, the proximate 
 cause is not a peril of thp sea, but was an act of hostility.^ 
 
 But it, may sometimes present a simple question of fact for 
 the jury, asi^in tort. 
 
 The cause of action is breach of covenant in a lease to permit 
 the usual notice "to let" to be posted on the building. The 
 damages claimed are ensuing loss of rent. It is a question for 
 the jury whether there was a loss of rent because of the violation 
 of the covenant. There may have been other causes.' 
 
 ' Lynn Gas & Electric Co. v. Meriden F. Ins. Co., 158 Mass. 570. So, in 
 case of accident insurance. Cary v. Preferred Accident Ins. Co., 127 Wis. 
 67; 5 L. R.,A. (n. s.) 926. 
 
 ^ lonides v. Universal M. Ins. Co., 14 C. B. (n.' s.) 259. 
 
 » U. S. Trust Co. V. O'Brien, 143 N. Y. 284. 
 
CAUSE AND CONSEQUENCE. 63 
 
 A carrier fails to deliver cotton for use in a mill, and damages 
 are claimed for stoppage of the mill. The court cannot rule, as 
 a matter of law, that the stoppage of the mill was caused by the 
 breach. Neglect on the part of the owner to have cotton on 
 hand may have been the true cause.' 
 
 Ordinarily, in cases of contract, the question is not one of 
 liability for proximate cause, but of consequential damages. 
 The breach of contract establishes liability, and the question of 
 the allowance of any item of damage is practically one of the 
 interpretation of the contract, and consequently for the court.^ 
 
 This emphasizes once more the fundamental distinction 
 between tort and contract. In tort, the question of the relation 
 in fact between the cause of action and the result — one of 
 ordinary natural sequence ■ — is left to the decision of a jury; in 
 contract, if this were done our existing rules governing the 
 measure of damages would disappear. In the case last cited 
 (a case of contract), Blackburn, J., says: "I do not think that 
 the question of remoteness ought ever to be left to a jury; that 
 would be in effect to say that there shall be no such rule as to 
 damages being too remote." 
 
 In an English case ^ the defendants agreed to load a quan- 
 tity of tiles on board a vessel of which they were charterers. 
 There was a breach of the contract, and the plaintiff paid £42 
 to a railway company for demurrage. The only question in the 
 case was whether this was the reasonable and normal result of 
 the breach (a true question of law). The question was left to the 
 jury, who found for the plaintiff. On appeal the verdict was 
 sustained, and the Court of Appeal very significantly said that 
 "the Lord Chief Justice might have ruled that this was an 
 undefended action, and that the only question for the jury was 
 the amount of damages." The defendants, of course, could not 
 complain of a ruling too favorable to them ; but it can hardly be 
 that the question was one of law or fact at the option of the trial 
 court. 
 
 ' Gee V. L. & Y. Ry. Co., 6 H. & N. 211. 
 
 ' Hobbs V. L. & S. W. Ry. Co., L. R. 10 Q. B. Ill, 122; HapQinond v. 
 Bussey, 20 Q. B. D. 79, 89. 
 
 Welch V. Anderson, 61 L. J. (n. s.) Q. B. 167. 
 
64 ELEMENTS OF THE LAW OF DAMAGES. 
 
 Liability for a breach of contract being established, damages 
 claimed may be excluded under the general rules of exclusion 
 already stated, or as so disconnected with the cause of action 
 as practically not to be attributable to it, or as so conjecturally 
 connected with it as not to be capable of proof. Damages 
 included may fall under the head of direct, proximate, and 
 consequential; the proximate being often called natural. The 
 direct damages being involved in the very conception of the 
 breach, — the money unpaid, the value of the property injured 
 or taken, — all other proximate damages are such as by the 
 ordinary operation of cause and effect are produced by the breach 
 of such a contract. 
 
 In contract a special kind of consequential damages is allowed, 
 — those "arising from the contemplation of the parties," to 
 which the term is here usually restricted. These damages are 
 necessarily proximate, that is, they are proximate results of the 
 cause of action, for otherwise they would be excluded as remote; 
 but they are only proximate under the special circumstances 
 surrounding the contract ; in the absence of these circumstances, 
 the contract remaining precisely the same, they would be remote. 
 In other words, the same consequence of the breach of a contract 
 will, in the absence of evidence bearing on what the parties 
 contemplated, be remote ; with such evidence, proximate. The 
 case is a peculiar one. 
 
 In the leading case on the subject ' the owners of a mill dehver 
 to a carrier a broken shaft to be taken to an engineer as a model 
 for a new one. On making the contract, the carrier's clerk is 
 informed that the mill has stopped, and that the shaft must be 
 sent immediately. The clerk promises that it shall be delivered 
 at once, but there is an unreasonable delay, owing to which the 
 mill cannot be worked. There being no proof that the carrier 
 knew that the mill must be stopped until the new shaft was 
 obtained, he is held not liable for the profits lost during the period 
 of delay. The following is laid down as the general rule govern- 
 ing all cases of contract; although much criticised in some of its 
 details, it still retains its position in the law as perhaps the best 
 
 ' Hadley v. Baxendale, 9 Exch. 341. 
 
CAUSE AND CONSEQUENCE. 65 
 
 expression in the most authoritative form of the underlying 
 principle with regard to the extent of recovery. 
 
 Rule. 
 
 11. For breach of contract, the damages are such as may 
 fairly and reasonably be considered, either arising 
 naturally, i. e., according to the usual course of things, 
 from sv£h breach of contract itself, or svxih as may 
 reasonably be supposed to have been in the contempla- 
 tion of the parties, at the time they made the contract, as 
 the probable result of the breach of it. 
 
 Illustrations. 
 
 (o) The action is contract against a carrier for having set plain- 
 tiff down at the wrong station, so that he is obliged to walk home. 
 He can recover for the inconvenience of having to walk.' 
 
 (6) A. agrees with B. to have a ship ready at a certain date, in 
 the dock, to receive a cargo of tiles. The ship is not ready and the 
 tiles are left in the trucks in which they came. B. has to pay the 
 railway company owning the trucks a certain sum for this as de- 
 murrage. The ordinary course of business on the docks would 
 have been to have the tiles brought up to the ship's side, and in 
 that case the dock company's charges would have been lower than 
 the railway's. B. being entitled to deliver in either way, the money 
 paid for the detention of the truck is the natural and ordinary 
 result of the breach.^ 
 
 (c) A common carrier loses a package intrusted to him for de- 
 Uvery, containing a set of plans for a hous6. He has no knowledge 
 of the contents of the package, or of the use to which the plans 
 were to be applied. The plans have no market value, and are use- 
 ful only to the owner. The measure of damages is the cost of new 
 plans and other expenses reasonably incurred in procuring them, 
 but not damages for the delay; they were neither natural, nor 
 within the contemplation of the parties.^ 
 
 (d) A shipper makes a special contract with a railroad com- 
 
 ' Hobbs V. L. & S. W. Ry. Co., L. R. 10 Q. B. 111. Ace. Williams v. 
 Carolina & Western R. R. Co., 144 N. C. 498; 12 L. R. A. (n. s.) 191. 
 = Welch V. Anderson, 61 L. J. (n. s.) Q. B. 167. 
 ' Mather v. Am. Exp. Co., 138 Mass. 55. 
 
 6 
 
66 ELEMENTS OF THE LAW OP DAMAGES, 
 
 pany to transport apples and deliver them to a connecting road 
 within a certain time, in order to avoid the danger of freezing. The 
 carrier negligently delays delivering, and the apples are frozen 
 while on the connecting line. The risk having been anticipated 
 and contemplated by the parties, the shipper can recover the whole 
 amount of his loss.^ 
 
 (e) Defendant agrees to supply plaintiff, a butcher, with ice, 
 knowing the plaintiff's object to be to keep meat fresh, but fails to 
 do so, in consequence of which a considerable amount of meat is 
 spoiled. The measure of damages includes the value of the meat 
 spoiled.^ 
 
 (/) A contract is made to deliver machinery for a cottonseed- 
 oil mill. The facts show that the time specified was regarded as 
 essential, and that the purchase of cotton seed in advance, in order 
 to manufacture it at the time fixed, was contemplated by the parties. 
 In consequence of delay in furnishing the machinery, some of the 
 seed so purchased deteriorates. The measure of damages includes 
 this loss.^ 
 
 (g) Covenant not to assign lease without consent, such con- 
 sent in a proper case not to be unreasonably withheld. The tenant 
 sublets without applying for consent, and knowingly, to a person 
 who uses the premises for a highly dangerous business, in conse- 
 quence of which they are destroyed by fire. Held, that the loss was 
 within the contemplation of the parties and the damage fairly and 
 reasonably to be treated as arising natiu'ally and according to the 
 usual course of things from the breach.* 
 
 {h) Plaintiffs, a firm of stevedores, contract to discharge a 
 cargo for defendant, the latter agreeing to supply necessary chains 
 fit for the purpose. Defendant supplies a defective chain, and by 
 reason of this one of plaintiff's workmen is injured. The defect 
 might have been discovered by plaintiffs with reasonable care. The 
 workman brings an employer's liability action against plaintiffs, 
 who admit their liability and pay him £125, found to be a proper 
 amount. Held, that the injury to the workman was within the con- 
 templation of the parties, and the money paid recoverable from 
 defendant for breach of his contract.^ 
 
 • Fox V. Boston & Me. R. R. Co., 148 Mass. 220. 
 ' Hammer v. Schoenfelder, 47 Wis. 455. 
 
 ' Van Winkle v. "Wilkins, 81 Ga. 93. 
 ' Lepla V. Rogers, [1893] 1 Q. B. 31. 
 
 • Mowbray v. Merry weather, [1895] 1 Q. B. 857; 2 id. 640. Cf. Bird- 
 
CAUSE AND CONSEQUENCE. 67 
 
 This rule, as interpreted by the courts, consists of two branches : 
 First, if there is nothing to serve as a guide but the contract 
 itself, then, besides the direct damages, only such damages can 
 be taken into the account as may be considered the natural (and 
 proximate) consequences of the breach (for here also, as every- 
 where else, the rule of proximate cause operates to cut off reTnote 
 damages). Second, if in addition to the contract there are certain ' 
 special circumstances which may reasonably be taken as having 
 been in the contemplation of the parties at the time of making 
 the contract,^ such damages as would be likely to result from the 
 breach in the light of those special circumstances may be re- 
 covered in addition (again subject, however, to the rule of 
 proximate cause). 
 
 The question how far the damages can be supposed to have 
 been within the contemplation of the parties depends of course 
 upon the condition of mind of both parties. The defendant 
 must have some notice or knowledge of the special consequences 
 reasonably to be anticipated from his breach. This notice or 
 knowledge is entirely distinct from the contract itself, but it 
 must form the basis of the contract. It is in substance proof that 
 the parties at the time of making the contract had in mind certain 
 special objects, which the contract of itself did not imply. 
 
 Illustrations. 
 
 (a) A. contracts to supply B. with shirtings of a certain quality, 
 A. being informed that they are intended for shipment. On breach, 
 B., to fulfil the contract with his vendee (there being no other goods 
 of the same kind in the market), has to buy elsewhere, at a higher 
 price, goods which are better, but the nearest obtainable to those 
 contracted for. His measure of damages is the difference between 
 the contract price and what he was obliged to pay.^ 
 
 (6) A. contracts with J., to make for him a "gunpowder pile- 
 singer V. McConnick Harvesting Co., 183 N. Y. 487, a case decided the 
 other way by a divided court on the ground that in it the warranty was 
 general. 
 
 ' Not that these damages were actually contemplated; for, as was 
 said by MABTrw, B., in Wilson v. Newport Dock Co., L. R. 1 Ex. 177, 185, 
 parties usually contemplate the performance, not the breach, of contracts. 
 
 ' Hinde v. Liddell, L. R. 10 Q. B. 265. 
 
68 ELEMENTS OF THE LAW OF DAMAGES. 
 
 driver," to be delivered at a fixed date. B. knowing the circum- 
 stances agrees with A. to supply a part of the machine called a 
 "gun." Owing to an unreasonable delay in completing the "gun," 
 J. refuses to accept the machine. The machine is unsalable, and 
 that it would be so B. knew at the outset. A. is entitled to recover 
 damages from B. for the loss of profit on the contract with J. and 
 for expenditure needlessly incurred on the machine.' 
 
 (c) A. agrees to sell B. a quantity of caustic soda, a commodity 
 not ordinarily procurable in the market, knowing at the time that 
 B. is buying the soda for a foreign correspondent, but nothing more. 
 In fact B. has contracted to sell the soda to C. in St. Petersburg at 
 an advance, while C. has contracted to sell it to D. at a further ad- 
 vance. A part of the soda only is delivered to B. after considerable 
 delay, and he is obliged to pay a higher rate of freight and insurance. 
 On account of the failure to deliver the remainder, B. is compelled 
 to pay C. £159, which C. has been obliged to pay D. for breach 
 of the third contract. B. is entitled to recover the excess of freight 
 and insurance, and the loss of profit on the sale to C, but not the 
 £159 paid on a sub-contract of which he had no notice.^ 
 
 (d) A. agrees to furnish B. with a number of sets of wheels and 
 axles made from tracings, and not procurable in the market gener- 
 ally. B. has a contract to supply the Russian government with 
 wagons, under a penalty of two roubles a day for delay. A. is in- 
 formed of this contract, but not of the date fixed for delivery, nor 
 the amount of the penalty. By reason of A.'s delay, B. makes de- 
 fault, and settles with the Russian government, at one rouble a day, 
 for £100. The proper measure of damages is not the sum paid in 
 settlement as such, but "a fair compensation for the loss which 
 would naturally arise from the delay," including the probable lia- 
 bility of B. to damages by reason of the breach of that contract to 
 which, as both parties knew, the contract of A. was subsidiary.^ 
 
 (e) Defendant, a merchant, agrees to furnish plaintiff, another 
 merchant, with sheep-skins of a certain sort for which there is no 
 
 » Hydraulic Engineering Co. v. McHaffie, 4 Q. B. D. 670. 
 
 ' Borries v. Hutchinson, 18 C. B. (n. s.) 445. The bearing of the fact 
 that the article is not procurable in the market is twofold : first, the vendee 
 cannot replace himself by going into the market; second,, if there is a 
 market price, it might be that the vendee only contemplated a sub- 
 contract at that price, as in the case of a special use contemplated by the 
 vendee, and an ordinary one by the vendor. 
 
 ' Elbinger Actien-Gesellschaft v. Armstrong, L. R. 9 Q. B. 473. 
 
CATJSE AND CONSEQUENCE. 69 
 
 market price, and not procurable anywhere unless ordered some 
 time in advance. Defendant knows that plaintiff requires them to 
 fulfil a contract in France with a third person, but does not know 
 the price fixed in the sub-contract. On breach of the first contract, 
 the plaintiff is sued on the French contract, and has to pay £28 
 damages. On suit by him on his contract, he may recover not 
 only the profit on the first contract, but also damages in respect 
 of his Uability on the French contract, and in estimating such 
 damages the £28 assessed may be treated as reasonable. ' 
 
 (/) A. contracts for the sale of a particular kind of coal to B., 
 knowing that the latter was buying to sell again as of that descrip- 
 tion. B. resells to C, but the coal is of an inferior quality, and this 
 fact could not be ascertained on inspection, but only on use by C. 
 C. brings an action against B., of which B. gives notice to A. A., 
 however, insists that the coal is according to contract. The ver- 
 dict is that the coal is not according to contract, and judgment is 
 entered against B. for damages and costs. B. sues A. for the 
 amount of the judgment. A. admits his liability for damages, but 
 denies all responsibility for costs. The costs are recoverable as 
 damages reasonably to be supposed to have been in the contem- 
 plation of the parties.^ 
 
 (g) B. having contracted to sell and deliver to a railroad 400 
 tons of steel-capped rails, engages the defendant to supply the 
 rails, the latter having notice of the purpose intended. B. has a 
 patent for capping the rails, and there is no market price for such 
 an article. B. is entitled, on breach, to the profits he would have 
 realized.' 
 
 (h) The vendor is informed of the sub-contract but not of the 
 price, which turns out to be unusual and extraordinary. He is not 
 bound by this price, which cannot be presumed to have been within 
 the contemplation of the parties, and the vendee can only recover 
 a reasonable and fair profit.* 
 
 (i) Defendant agrees with K. to make for him certain dies to 
 be used by him in the manufacture of lanterns. K. is not at the 
 time engaged in the manufacture of lanterns, and does not contem- 
 
 ' Grfbert-Borgnis v. Nugent, 15 Q. B. D. 85. 
 
 ' Hammond v. Bussey, 20 Q. B. D. 79. Cf. Agius v. Great Western 
 ColUery Co., [1899] 1 Q. B. 413. 
 
 ' Booth V. Spuyten Duyvil Rolling Mill Co., 60 N. Y. 487. 
 
 * Geotskow Bros. Co. v. A, H. Andrews & Co., 92 Wis, 214; 52 L. R. A. 
 209, 
 
70 ELEMENTS OP THE LAW OP DAMAGES. 
 
 plate engaging in it until the dies are finished. K. incorporates a 
 company and assigns to it the contract, after which there is a breach 
 of contract. The company claims to recover damages for rent of 
 premises and employment of men after the breach. It does not 
 appear that the defendant had any reason to suppose that such an 
 expense would be incurred in advance of the delivery of the dies, nor 
 could he anticipate that the contract would be assigned and that 
 the assignee would employ men and premises to remain idle after 
 the breach. Such damages cannot be allowed.' 
 
 (j) Cases containing machinery intended for the erection of a 
 mill at Vancouver's Island are delivered to a carrier at Glasgow. 
 The carrier knows only that it is intended for the erection of a 
 mill. Part of the machinery, without which the mill cannot be 
 erected, is lost, and the shippers are obliged to send to England to 
 replace it. The measure of the damages is not the value of the use 
 of the machinery, or profits which might have been made, but the 
 cost of replacing the machinery.^ 
 
 (k) The cause of action is failure to furnish an engine or 
 machinery with full knowledge on both sides of the necessary con- 
 sequences of failure. The measure of damages is the rental value 
 of the property during the period of enforced idleness.' 
 
 (I) F. agrees to furnish a coal company with a locomotive engine 
 to draw coal cars. F. knows that it is for a track of unusual width, 
 and that such engines are not to be hired when wanted. He does 
 not know that the possession of the engine would enable the com- 
 pany to mine more coal than without it. The measure of damages 
 for breach of the agreement is not the enhanced profits the com- 
 pany might have made, nor the cost of hiring another engine, but 
 the difference of cost of transportation with and without the engine.* 
 
 (m) Action for breach of contract to sell and deliver crude 
 oil. Mere notice to the seller of some interest or probable action 
 of the buyer is not enough necessarily and as a matter of law to 
 charge the seller the special damage on that account.^ 
 
 ' Rochester Lantern Co. v. Stiles & Parker Press Co., 135 N. Y. 209. 
 
 ' British Columbia Sawmill Co. v. Nettleship, L. R. 3 C. P. 499; ace. 
 Thomas B. & W. Mfg. Co. v. Wabash, St. L. & P. Ry. Co., 62 Wis. 642. 
 Cf. Strdms B. A. Bolag v. Hutchinson, [1905] A. C. 515. 
 
 ' Machine Co. v. Compress Co., 105 Tenn. 187 ; 63 L. R. A. 482. Cf. 
 Griffin V. Colver, 16 N. Y. 489. 
 
 * Pittsburg Coal Co. v. Foster, 69 Pa. St. 365. 
 
 « Globe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 640. 
 
CAUSE AND CONSEQUENCE. 71 
 
 It is in contract that the state of mind of the defendant be- 
 comes of importance. In contract, the question of Hability is 
 settled at once by the breach. The question is, What are the 
 proximate damages of the breach ? As already stated, the di- 
 rect damages must be recoverable. These are generally the 
 value of the promise, had it been performed. But this once 
 determined, how far are other damages recoverable ? The rule 
 in tort, of responsibility for damages ensuing according to the 
 usual course of things, will apply as far as it will go; but how 
 far does it apply ? 
 
 The difference between the two cases is this: In tort, the 
 defendant usually sets in motion some natural force which 
 inevitably produces the result. In contract, the ordinary, natural, 
 normal consequence of the breach is simply the loss of the value 
 of the promise. It cannot be said that in the ordinary course of 
 nature it is the consequence of failing to supply a shaft that a 
 mill stops ; it may be set going by another. Hence under ordi- 
 nary circumstances the inquiry into the value of the thing or 
 service promised ends the matter. But something more may 
 appear. The contract may have been made to supply the shaft 
 for a particular mill which is known by the defendant to be 
 absolutely dependent upon it. Proof of this will increase the 
 actual value of the promise, or enlarge the scope of the con- 
 sequences ensuing from its breach. The defendant does not 
 now merely contract to deliver a shaft, but to deliver a shaft 
 without which a mill must be stopped. On a breach this use 
 of the shaft enters into the value of the contract which plaintiff 
 has lost. The admissibility of evidence as to the contemplation 
 of the parties does not show that the principles of compensation 
 are different in contract and tort; such evidence is proof that, 
 in case of a particular contract, a given consequence is a natural 
 or proximate result of the breach of that particular contract. 
 
 Civil Damage Acts. The statutes of many States make 
 damage to third persons arising from sales or gifts of liquor, 
 through the intoxication of the vendee or donee, a cause of action. 
 These statutes run counter to the ordinary principles of proximate 
 
72 ELEMENTS OP THE LAW OP DAMAGES. 
 
 cause, at many points, and fasten upon the vendor of intoxicants 
 a liability which is highly artificial. The courts endeavor to 
 trace the connection between the sale or gift and the intoxication, 
 and also the relation of the intoxication to the injury; but the 
 fundamental diflSculty is that the ordinary principles of proxi- 
 mate cause are disregarded by the statute, which enacts that in 
 such cases a particular contributing cause shall be held to make 
 the defendant liable whether it is really the proximate cause of 
 the injury or not. Thus in a recent case in Iowa, where the 
 injury was loss of support through suicide, it was held that it 
 was not necessary to establish that the intoxication was the 
 proximate cause, nor that the suicide would not have been com- 
 mitted but for the unlawful sale.' The decisions under these 
 statutes can hardly be said to throw any hght on the general 
 principles which govern this branch of our subject, the rule of 
 causation followed being not that of nature, but an arbitrary 
 rule estabhshed ad hoc by the legislature. 
 
 » Bistline v. Ney, 134 la. 172; 13 L. R. A. (n. s.) 1158. 
 
CHAPTER VI. 
 
 AVOIDABLE CONSEQUENCES. 
 
 It is a universal rule, both in tort and contract, that for such 
 consequences of the wrong or injury as the plaintiff might, with 
 ordinary prudence, have avoided, the defendant cannot be held 
 responsible. The law assumes that a person injured will en- 
 deavor to reduce the amount of his loss within as narrow limits 
 as possible, and if he does not do so, the consequences are not the 
 proximate result of the defendant's act, but of his exercising, or 
 neglecting to exercise, his own will. 
 
 It is sometimes said that a person who neglects to prevent the 
 consequences of another's wrong fails in a duty; ^ but since the 
 result of neglecting it falls not on another, but on the person 
 himself in fault, it seems to be one of those self-regarding duties 
 which are outside the domain of the law. 
 
 It accords more with principle, as illustrated in the decisions, 
 to regard consequences which might have been avoided and for 
 which, therefore, no recovery can be had, as due to the plaintiff's 
 own negligence, and thus not flowing proximately from the cause 
 of action. But for the intervention of the plaintiff's independent 
 will, they could not have occurred.^ 
 
 The doctrine of contributory negligence differs from that of 
 avoidable consequences in an important respect. Contributory 
 negligence takes away the cause of action itself; for the question 
 of avoidable consequences to arise, it is necessary that a cause of 
 action should first exist. But the principle from which they 
 spring is the same, — that the defendant cannot be held respon- 
 sible for anything of which the real cause is the plaintiff's 
 
 ' Miller v. Mariner's Church, 7 Gr. 51. 
 
 ' Loker v. Dampn, 17 Pick. 284; Ingraham v. Pullman Co., 190 Mass. 
 33; 2 L. R. A. (n. s.) 1087. 
 
74 ELEMENTS OF THE LAW OF DAMAGES. 
 
 negligence; or as the Supreme Court of the United States has 
 said : " One who by his negligence has brought an injury upon 
 himself cannot recover damages for it." * The difference be- 
 tween contributory negligence and the doctrine of avoidable 
 consequences is continually seen in personal injury cases. A 
 railway collision occurs, which is due to the negligence of the 
 company, and in which the plaintiff's arm is broken; he is 
 entitled to damages. It appears that but for the fact that his arm 
 was outside the car window at the time, he would not have been 
 injured; his cause of action is gone. It appears that he has a 
 cause of action, but that owing to his neglect to procure proper 
 surgical advice, he has lost his arm altogether; for this head of 
 damage he cannot recover. 
 
 To excuse the defendant's negligence so as to defeat the action, 
 the plaintiff's negligence must not only be a contributing but a 
 proximate cause. If after the plaintiff's negligence has come into 
 operation as a cause the defendant has a clear opportunity of 
 avoiding the natural consequences and fails to take it, then it is 
 the defendant's act or omission which is the proximate cause of 
 the injury. This is the so-called doctrine of the "last clear 
 chance." A common illustration is that of one who being negU- 
 gently upon a railroad track is unnecessarily and negligently run 
 down by an approaching train. Contributory negligence in such 
 a case does not defeat the action.^ 
 
 In tort, the line of distinction between contributory negligence 
 and avoidable consequences may not always be easy to draw. 
 But in contract it is plain enough, for here, a breach being shown, 
 the plaintiff is always entitled to nominal damages, and it is only 
 the question of avoidable consequences which can arise. In con- 
 tract there is no such thing as contributory negligence. And so 
 it has been held that in an action founded upon a contract of 
 service, a plea that plaintiff might have procured employment 
 elsewhere (and so reduced the damage) is not a bar to the action.' 
 
 » Railroad Co. v. Jones, 95 U. S. 439, 442. 
 
 " Drown v. Northern Ohio Traction Co., 76 Ohio St. 234; 10 L. R. A. 
 (n. s.) 421; Rider v. Syracuse R. T. Ry. Co., 171 N. Y. 139; 58 L. R. A. 
 125; Oatest). Met. St. Ry. Co., 168 Mo. 535; 58 L. R. A. 447. 
 
 ' Armfield v. Marsh, 31 Miss. 361. 
 
AVOIDABLE CONSEQUENCES. 75 
 
 As the plaintiff is expected to take such steps as may be neces- 
 sary to prevent damage, the expense of such steps is chargeable 
 to the defendant, or, in other words, the expense of avoiding the 
 consequences of the defendant's act is recoverable, provided it be 
 reasonable. 
 
 In cases of contract the rule is sometimes put in a different 
 way. The plaintiff is said to be entitled to the benefit of the con- 
 tract, and if the defendant does not perform, he may perform for 
 him, and charge the expense to him. Thus a traveller who is 
 entitled to a conveyance may, on failure to furnish it, hire an- 
 other, and charge the person failing with the expense.^ But the 
 result is the same. What he does is not really to perform for the 
 defendant, but to take such steps as prudence dictates, and the ex- 
 pense of such steps is a natural and proximate consequence of 
 the breach. In the case last cited, Mellish, L. J., points out that 
 one mode of determining what should be done is to consider what 
 a person in the position of the injured party would, as a reason- 
 able man, have done, had he been placed in the same position 
 without fault on the part of the defendant, i. e., what it was his 
 business, as a man in the exercise of ordinary care, to do. This 
 principle will sometimes have the result of enhancing instead of 
 reducing damages.^ The plaintiff, for instance, in reasonably 
 endeavoring to escape the consequences of the act of the defend- 
 ant, incurs a new injury; for this he may recover.^ 
 
 A common instance of the rule is in contracts of hiring. The 
 rule, however, that defendant can reduce damages by showing 
 that plaintiff employed or might have employed his time to ad- 
 vantage, does not apply to every contract. It appUes to contracts 
 of hiring, because in them the party injured can earn no more 
 than single wages, and if he gets that in any way his loss will only 
 be nominal. But in the case of other contracts, the plaintiff is 
 entitled to the benefit of his bargain, and may perhaps be entitled 
 to the benefit of many other contracts. To go into evidence to 
 
 ' Hamlin v. Gt. N. Ry. Co., 1 H. 4 N. 408; LeBlanche v. L. & N. .W. 
 Ry. Co., 1 C. P. D. 286. 
 
 " This of itself shows that the rule does not rest upon a duty to reduce 
 damages. 
 
 ' Jones V. Boyce, 1 Starkie, 493. 
 
76 ELEMENTS OP THE LAW OF DAMAGES. 
 
 show that he has made as much, or might have made as much, 
 in other ways, as if the contract had been performed, is irrele- 
 vant. A contract, for instance, to build a house, does not pre- 
 clude the contractor from making fifty similar contracts, and 
 enjoying the benefit of them all.* 
 
 The question of avoidable consequences, so far as it is one of 
 negligence, is for the jury, under proper instructions. The ques- 
 tion, for instance, whether moderate expense and ordinary effort 
 would have lessened the damages is one of fact.^ Cases of course 
 may often arise in which the matter is so plain that there is noth- 
 ing for the jury to consider; but this is true of all questions of 
 fact. The burden of proof is always on the defendant to show 
 that plaintiff has, or might have, reduced damages.^ 
 
 If is hardly necessary to say that in requiring the plaintiff to 
 reduce damages, in the exercise of ordinary care, the precautions 
 called for are only such as are within his rights. He is not to 
 violate a contract with a third party,* nor to commit a trespass.^ 
 
 Rules. 
 
 12. Consequences of a tort or breach of contract avoidable by the 
 
 plaintiff in the exercise of ordinary prudence are con- 
 sidered in law as remote; no damages can be recovered 
 for them. 
 
 13. Reasonable expense or injury incurred in the effort to avoid 
 
 such consequences is a proximate consequence. 
 
 14. Damages arising from acts of the defendant preventing 
 
 the plaintiff from avoiding such consequences are 
 proximate. 
 
 Illustrations. 
 
 {a) In an action of trespass it appears that D. broke down L.'s 
 fence in November, but that L. did not repair it till May. Cattle, 
 
 ' See the whole subject fully considered in Wolf v. Studebaker, 65 
 Pa. St. 459. 
 
 ^ Leonard v. N. Y., etc. Tel. Co., 41 N. Y. 544. 
 
 ' Hamilton v. McPherson, 28 N. Y. 72. 
 
 * Leonard v. N. Y., etc. Tel. Co., 41 N. Y. 544, 566. 
 
 ' Chic. R. L & P. R. R. Co. v. Carey, 90 111. 514; Fromm v. Ide, 68 
 Hun, 310. 
 
AVOIDABLE CONSEQUENCES. 77 
 
 getting in, have destroyed the next year's crop. The measure of 
 damage is not the value of the crop, but the cost of repairing the 
 fence. ^ 
 
 (6) The cause of action is the failure of a train to stop and take 
 on a passenger. He walks to his destination, exposes himself to 
 extreme cold, and injures his health. Evidence is offered to prove 
 that he might have taken the next train, or procureds another con- 
 veyance. To exclude such evidence is error. ^ 
 
 (c) A carrier breaks a contract to furnish a passenger a draw- 
 ing-room on a certain train, but offers other accommodations 
 which would have answered. The passenger cannot recover for 
 aggravation of valvular heart disease caused by sitting up all 
 night.' 
 
 (d) S., a married woman, sues defendant town for injury caused 
 by a defective highway. After the injury, and while under medical 
 treatment, she becomes pregnant, and her pregnancy enhances the 
 effects of the injury. It does not appear that she had any rea- 
 son to anticipate such a consequence. Defendant requests that 
 the jury be directed not to allow for any increase of dam- 
 age through the pregnancy. There is no error in refusing this 
 instruction.^ 
 
 (e) A. employs B. to effect insurance upon his property, which 
 B. neglects to do. A., knowing of this, cannot stand by and hold 
 B. for any loss which may occur. ^ 
 
 (/) An express company, employed to deliver a premium on a 
 poUcy of insurance to the insurer, fails to do so, and the policy 
 lapses. To recover substantial damages the insured must show 
 that he used all reasonable efforts to prevent the lapse, or to procure 
 reinstatement.* 
 
 (gf) An insurance company without cause refuses to allow 
 an assignable policy to be transferred on its books to the purchaser. 
 The latter may recover the cost of procuring new insurance.' 
 
 (h) A tenant in common recovers damages against a co-tenant 
 
 ' Loker v. Damon, 17 Pick. 284. So, of the cost of restoring a building 
 to its former condition. FitzSimmons & C. Co. v. Braun, 199 III. 390. 
 ' Ind. B. & W. Ry. Co. v. Bimey, 71 111. 391. 
 
 ' Ingraham v. Pullman Co., 190 Mass. 33; 2 L. R. A. (n. s.) 1087. 
 * Salladay v. Dodgeville, 85 Wis. 318. 
 « Brant v. Gallup, 111 111. 487. - 
 « Grindle v. Eastern Express Co., 67 Me. 317. 
 ' Marshall v. Franklin Fire Ins. Co., 176 Pa. 628; 34 L R. A. 159. 
 
78 ELEMENTS OP THE LAW OF DAMAGES. 
 
 for removing doors and windows. For the exposure, damages must 
 be limited to a reasonable time for making repairs.* 
 
 (i) A servant is discharged without lawful cause. The amount 
 which he earns, or might, with reasonable diligence, have earned 
 in other employment, must be allowed in reduction of damages.^ 
 
 (j) B:, in charge of a vessel, is subjected to expense in getting 
 her off from an unlawful obstruction in a navigable river placed 
 there by the defendant. For this expense he can recover.^ 
 
 (k) In an action on the case for taking a horse and wagon, 
 plaintiff claims to recover, by way of spedal damages, the value 
 of time and money spent in searching for the property ; it appears 
 that the search was reasonable under the circumstances. The items 
 claimed are recoverable.* 
 
 (I) A passenger in a stage-coach is placed, by a defect in its con- 
 struction for which the owners are responsible, in such a situation 
 of peril as to make it a reasonable precaution for him to leap from 
 it. Had he remained in hTs seat, he would have been safe; by 
 jumping he sustains a serious injury. For this injury he can 
 recover.^ 
 
 (m) A horse is injured, and rendered entirely worthless. The 
 plaintiff, however, having reason to believe that a cure can be 
 effected, expends inoney for this purpose. He can recover the 
 money so spent, in addition to the value of the horse.* 
 
 (w) A passenger delayed through the fault of a railway com- 
 pany, hires a special train for the purpose of reaching his destina- 
 tion at S. He has no business or engagement in S. which requires 
 his being there at any particular time. Such an expense is imrea- 
 sonable, and he cannot recover it.' 
 
 (o) The evidence shows damage to a machine and that the cost 
 of repairs would have equalled the price of a new machine. It is 
 held that the rule of avoidable consequences does not apply.' 
 
 (p) A farm is let, and possession is refused. In an action by 
 
 ' Davis V. Poland, 102 Me. 192; 10 L. R. A. (n. s.) 212. 
 ' Sutherland v. Wyer, 67 Me. 64. Cf. Busell Trimmer Co. v. Cobum, 
 188 Mass. 254; 69 L. R. A. 821. 
 
 ' Benson v. Maiden & Melrose Gaa Light Co., 6 All. 149. 
 
 * Bennett v. Lockwood, 20 Wend. 223. 
 " Ingalls V. Bills, 9 Met. 1. 
 
 • Ellis V. Hilton, 78 Mich. 160. 
 
 ' Le Blanche v. London & N. W. Ry. Co., 1 C. P. D. 286. 
 
 » Thomas B. & W. Mfg. Co. v. Wabash, St. L. & P. Ry. Co., 62 Wis. 642. 
 
AVOIDABLE CONSEQUENCES. 79 
 
 the lessee, the lessor is permitted to prove that the plaintiff had en- 
 gaged in another occupation more profitable than farming. This 
 is error.' 
 
 (q) The cause of action is damage arising from a trespass com- 
 mitted by a boom company. The damages cannot be reduced 
 by proof that the company declared its intention to commit the 
 trespass, and that the plaintiff might by anticipating the wrong 
 have avoided its consequences.^ 
 
 (r) C, having been engaged by defendant, as superintendent 
 of its railroad, for a year, is discharged without cause, and after 
 notifying defendant of his readiness to complete the contract, re- 
 mains unemployed during the remainder of the year. Prima facie, 
 he is entitled to his full salary ; to reduce his damages, defendant 
 must show aflSrmatively that he had an opportunity of obtaining 
 other employment of the same kind and description.' 
 
 As the last two cases show, the burden of taking steps to 
 avoid consequences cannot arise until an actual tort or breach 
 of contract has occurred. A mere threat of wrongdoing cannot 
 cause it to come into existence. Thus, where a passenger has 
 paid his fare and a second payment is wrongfully demanded on 
 penalty of eviction, it is not his duty merely because he has 
 money enough to do so to pay a second time. He may stand 
 upon his rights and recover full damages for his eviction.^ 
 
 It has been said in a recent Texas case ° that in cases of wilful 
 tort the doctrine of avoidable consequences does not apply unless 
 the negligence in avoiding consequences is gross, — that if 
 it is only ordinary care which is omitted the plaintiff should re- 
 cover full damages. No ground for this is given, no authority 
 is cited, and the suggestion seems opposed to both the entire 
 current of authority and to the principle of the rule. 
 
 The plaintiff is bound to use ordinary care ; this care having 
 been exercised, the rule of avoidable consequences is satisfied. 
 
 ' Wolf V. Studebaker, 65 Pa. St. 459. 
 ' Plummer v. Pen. Lumbering Asso., 67 Me. -363. 
 ' Costigan v. Mohawk & H. R. R. Co., 2 Den. 609. 
 * Yorton V. Mil. L. S. & W. Ry. Co., 62 Wis. 367. 
 ' Galveston H. & S. A. Ry. Co. v. Zantzinger, 92 Tex. 365; 44 L. R. A. 
 653. 
 
80 ELEMENTS OP THE LAW OF DAMAGES. 
 
 Thus, in injury cases it is his duty to procure medical or surgical 
 services, and to be careful in selecting a competent doctor or 
 surgeon ; his responsibility is now at an end. 
 
 Illustration. 
 
 The physician omits to employ the most approved remedies and 
 the damage is not reduced as much as it should have been. The 
 plaintiff nevertheless recovers the full extent of the damage.' 
 
 As the plaintiff should reduce his damages, so the defendant is 
 not allowed to enhance them. 
 
 Illustration. 
 
 Owners of a mine extending under a highway work it so as 
 to cause a subsidence of the surface. Those authorized to do so 
 restore the roa'd to its former level at an expense of £400. An 
 equally commodious road could have been made at a cost of 
 £65 ; £80 are paid into court by defendants. Held, that judgment 
 must be entered for defendants;' 
 
 ' Selleok v. Janesville, 100 Wis. 157; 41 L. R. A. 563. 
 
 ^ Lodge Holes Colliery Co., Ld., v. Wednesbury, [1908] A. C. 323. 
 
CHAPTER VII. 
 
 NOMINAL AND EXEMPLAEY DAMAGES. 
 
 It is a fundamental principle of the common law that any 
 invasion of a right imports legal injury, and gives a right of action 
 for damages ; and if the amount of injury be trifling, or in many 
 cases even if no injury can be shown, the plaintiff is still entitled 
 to what are called nominal damages ; that is, a verdict for some 
 nominal sum, which at once establishes his right or title. By 
 another rule no less important, whenever a person omits to govern 
 his conduct by that standard of care for the rights of others which 
 the law exacts, and actual damage ensues, he is responsible for 
 the consequences, although, had no damage ensued, his act 
 might have been indifferent. 
 
 The first question in every suit is whether a right of action 
 exists. The liability, if established, may give the right either to 
 nominal or substantial damages, and it must be observed that 
 the difficulty of ascertaining the precise quantum of damages 
 suffered is no bar to a substantial recovery. The damage flowing 
 from the cause of action may be inseparably mingled with other 
 damage which does not support the action at all, or the damage 
 done by A. against whom no action Hes may be mingled with 
 damage done by B., a third party. The jury must arrive under 
 proper instructions at a reasonable estimate. 
 
 Illustration. 
 
 The action is against a railroad company for negligently oper- 
 ating its locomotives so as to cause them to emit smoke unneces- 
 sarily damaging plaintiff's property. This smoke is mingled with, 
 so as to be indistinguishable from, smoke reasonably necessary for 
 
 6 
 
82 ELEMENTS OF THE LAW OF DAMAGES. 
 
 the proper operation of the road. This is no reason why the plain- 
 tiff should be restricted to nominal damages.'. 
 
 Rule. 
 
 15. Whenever a breach of contract or a tort is established, the 
 "plaintiff is entitled to nominal damages. 
 
 Illustrations. 
 
 (a) In an action by A., who has a right to use the water of a 
 stream, for the diversion of it by a riparian owner higher up, the 
 court charges the jury: 1. That the question must be "determined 
 with reference 'to the land as it was, and not with reference to the 
 future for an instant;" 2. That the question is whether the diver- 
 sion of the water left the stream "to a material and appreciable 
 extent, insufficient for the purposes of plaintiff's business;" on the 
 other hand, plaintiff's request to charge that his right to maintain 
 the action and recover nominal damages does not depend upon his 
 showing actual or perceptible damage, but solely upon the ques- 
 tion of a perceptible and material reduction of the volume of the 
 water, is refused.' On appeal the judgment is reversed, and a new 
 trial granted. The plaintiff's request should have been granted, 
 while the charge actually given was erroneous.^ 
 
 (6) A firm, dealing in grain, telegraphs in May to its agent to 
 buy twenty thousand bushels of wheat, deliverable in June. After 
 the message has been sent, wheat fluctuates in price so that, had the 
 message been acted upon, the firm might have made a loss. The 
 message, however, is never delivered. The firm is entitled to 
 nominal damages.' 
 
 (c) Action upon a contract to receive and pay for press re- 
 ports; the provision as to price is too indefinite to permit a sub- 
 stantial recovery. The plaintiff is entitled to a verdict for nominal 
 damages.* 
 
 ■ Jenkins v. Penn. R. R. Co., 67 N. J. L. 331; 57 L. R. A. 309. The 
 opposite of nominal damages is always substantial damages, i. e., compen- 
 sation. Nominal here should never be confounded with smaU damages. 
 The Mediana, [1900] A. C. 113, 116, per Halsburt, L. C. 
 
 ' N. Y. Rubber Co. v. Rothery, 132 N. Y. 293. 
 
 ' Hibbard v. W. U. Tel. Co., 33 Wis. 558. 
 
 * United Press v. United Press Co., 164 N. Yl 406; 53 L. R. A. 288. 
 
NOMINAL AND EXEMPLARY DAMAGES. 83 
 
 (d) A riparian proprietor erects works which have the effect of 
 fouling the water below him. This pollution of the stream, how- 
 ever, does no actual damage, because the water had been already 
 so polluted by similar acts of mill-owners and dyers, still higher up, 
 that the additional fouling does not make it less applicable to useful 
 purposes than it was before. Nevertheless, a proprietor lower 
 down is entitled, in an action of tort, to nominal damages.' 
 
 (e) In an action of trespass it appears that the trespass consists 
 in having taken possession of a mill, in such a condition that the 
 profits could not have exceeded the cost of repairs. The trespasser 
 erects a new one in its place, so that the result is a large increase 
 in the value of the property. The owner is entitled to nominal 
 damages.^ 
 
 (/) Plaintiff's right of access to a river is impaired, but he 
 proves no actual damages. He recovers nominal damages only.' 
 
 With regard to breaches of contract, there is no difficulty in 
 applying the above rule, as it is impossible to conceive of a breach 
 of contract which does not give rise to a right of action. But vsdth 
 regard to torts, it will be perceived that unless we go through the 
 whole body of actionable wrongs, we shall not be able to divide 
 all the classes of cases in which the right to damages is depend- 
 ent merely on proof of the defendant's acts from those in which 
 it is necessary to couple with this some proof of actual damage 
 to the plaintiff. Some little examination of the more common 
 classes of action may, however, be useful. 
 
 It may be said in the first place that with regard to trespass 
 upon property, whether real or personal, the right of action, inde- 
 pendent of actual damage, is probably as universal as in the case 
 of contracts. This, so far as real estate is concerned, is because 
 any trespass is an act which, if not protected against, may be 
 used by the trespasser as evidence in favor of his own ownership ; * 
 consequently for any trespass upon lands (and interference with 
 incorporeal hereditaments, such as easements, comes practically 
 
 ■ Wood V. Waud, 3 Exch. 748. 
 ' Jewett V. Whitney, 43 Me. 242. 
 
 ' Slingerland v. International Contracting Co., 169 N. Y. 60; 56 L. R. A. 
 494. 
 
 « Chapman v. Thames Mfg. Co., 13 Conn. 269. 
 
84 ELEMENTS OF THE LAW OF DAMAGES. 
 
 under the same head, for though technically a common-law 
 action of trespass does not lie, still adverse enjoyment ripens 
 after lapse of time into ownership) a right of action always 
 exists, independent of whether actual injury is inflicted or not. 
 And the same principle applies to all interference with personal 
 property, all cases of conversion, interference with patents, 
 trade-marks, and copyrights. 
 
 Nor is proof of damage necessary in all that class of actions 
 which are given for the protection of what are commonly called 
 personal rights, — malicious prosecution, false imprisonment, 
 enticement, harboring, seduction, assault, assault and battery, 
 Ubel. 
 
 On the other hand, to sustain an action in cases of deceit or 
 negligence, some proof of damage is obviously necessary, for 
 I neither falsehood nor want of due care in the management of one's 
 affairs, or in one's conduct, are actionable in themselves — apart 
 from their consequences. Nuisance, and the violation of the 
 right of lateral or subjacent support, are peculiar cases, because 
 they come from the exercise of ordinary property rights, but 
 which, in case they cause damage, become actionable. In slander 
 our law divides defamatory spoken words into two classes : first, 
 where such words are assumed by the law to import damage; 
 second, all others. In the first class, the words being slanderous 
 per se, no proof of damage is required. 
 
 There is one species of action which is very frequent both in 
 England and the United States as to which there is on the sub- 
 ject of nominal damages a conflict of opinion in the two coun- 
 tries, — that of actions against public ministerial officers. In 
 England it is said that while it is the duty of a sheriff to make a 
 true return to a writ, and to arrest a debtor on proper process, 
 still the duty is imposed upon him only for the benefit of the 
 creditor, and if he can absolutely negative the possibility of any 
 advantage enuring to the creditor from the performance of the 
 duty, the plaintiff will not be entitled to nominal damages.' In 
 this country nominal damages are in some jurisdictions given for 
 
 ' Mayne on Damages (7th ed.), 6; Williams v. Mostyn, 4 M. & W. 145; 
 Stimson v. Farnham, L. R. 7 Q. B. 175. 
 
NOMINAL AND EXEMPLARY DAMAGES. 85 
 
 every breach of duty by a public officer.' It is not necessary here 
 to go into this matter fully. It is merely mentioned for the pur- 
 pose of calling attention to the distinction between the class of 
 cases in which proof of damage is required to support an action, 
 and tliose in which nominal damages are recoverable in any 
 event. Actions against public officers may be actions of tort 
 founded upon a public duty, or actions upon the official bond 
 usually given in such cases to secure the performance of that duty. 
 In either case, the decision of the question whether the plaintiff 
 should recover nominal damages will depend upon whether we 
 regard the right of the plaintiff as wholly dependent upon dam- 
 age, or whether we regard the plaintiff as having some right 
 which the wrongdoing of defendant invades. 
 
 In those jurisdictions in which, under the eminent domain 
 statutes, a landowner can recover for property damaged though 
 none is taken, damage in such a case is the gist of the action and 
 nominal damages are not recoverable.^ 
 
 Upon the whole, looking as well at the general rule as at the 
 exceptional cases, it may be said that the injury is looked upon 
 as the invasion of a contract, property, or personal right inherent 
 in the plaintiff, whenever nominal damages are recoverable; 
 wherever, on the other hand, the primary notion is the breach 
 by the defendant of a duty, producing damage to others, then 
 damage is the gist of the action. 
 
 In all actions of tort ' it is the rule in most jurisdictions that 
 the jury may give damages beyond the strict limit of compen- 
 sation, when the act complained of has been committed under 
 circumstances of aggravation, and thus, by a heavier verdict 
 than the rule of compensation would call for, punish the de- 
 fendant and hold him up as an example to others.* 
 
 ' Laflin v. Willard, 16 Pick. 64; Lawrence v. Rice, 12 Met. 535; Micklea 
 V. Hart, 1 Den. 548. 
 
 ' Swift V. Newport News, 105 Va. 108; 3 L. R. A. (n. s.) 404. 
 
 ' The rule is the same in actions for breach of promise of marriage; this 
 ia an anomaly which will be explained elsewhere. 
 
 « Emblen v. Myers, 6 H. & N. 54; Day v. Woodworth, 13 How. 363, 
 371; Milwaukee & St. P. Ry. Co. v. Arms, 91 U. S. 489; Dalton v. Beers, 
 
86 ELEMENTS OF THE LAW OF DAMAGES. 
 
 It should be observed that in many cases the action may 
 sound in contract as well as tort, e. g., cases against carriers, 
 growing out of the undertaking to transport passengers, bag- 
 gage, etc. Here there may be a contractual and a public duty 
 at the same time. In such cases exemplary damages are usually 
 recoverable if the declaration is properly framed so as to state a 
 cause of action ex delicto^ 
 
 Rule. 
 
 16. In all cases where a tort is attended by circumstances shmo- 
 ing evil motive or wanton disregard of the -plaintiff's 
 rights, the jury may, in its discretion, give damages in 
 excess of compensation, by way of example and pun- 
 ishment. 
 
 Illustrations. 
 
 (a) The action is for trespass for false imprisonment under a 
 warrant plainly illegal. The court refuses to interfere with a ver- 
 dict for £300 damages, though it appears that so far as actual in- 
 jury is concerned £20 might have been enough.^ 
 
 (6) The case is a proper one for exemplary damages, but it ap- 
 pears on appeal that the jury probably understood the charge of 
 the court to be that the plaintiff was entitled to such damages of 
 right. Judgment is reversed and the cause remanded for a new 
 trial.' 
 
 (c) A. induces B. (by means of false representations that she b 
 virtuous) to marry a domestic servant employed in B.'s family. 
 
 38 Conn. 529; Harrison v. Ely, 120 111. 83; Bergmann v. Jones, 94 N. Y. 
 61; Goddard v. Grand Trunk Ry., 57 Me. 202. 
 
 ' Pittsburg C. & St. L. Co. v. Lyon, 123 Pa. 140; Webb v. Atlantic 
 C. L. R. R. Co. (S. C), 9 L. R. A. (n. s.) 1218. 
 
 ' Huckle V. Money, 2 Wils. 205. 
 
 ' Snow V. Carpenter, 49 Vt. 426; ace. Wabash, St. L. & P. Ry. Co. v. 
 Rector, 104 111. 296; Louisville & N. R. R. Co. v. Brooks, 83 Ky. 129; 
 New Orleans, St. L. & C. R. R. Co. v. Burke, 53 Miss. 200 ; Gambrill v. 
 Schooley, 93 Md. 48; 52 L. R. A. 87. The contrary is maintained in 
 Wisconsin, where it has been held that if the facts are such as to make 
 exemplary damages proper, the jury must give them. Hooker v. New- 
 ton, 24 Wis. 292. 
 
NOMINAL AND EXEMPLARY DAMAGES. 87 
 
 B. may maintain an action for loss of consortium, and the jury may 
 give exemplary damages.' 
 
 (d) Attaching officers without malice on their own part allow 
 themselves to become tools of attaching creditors and make an 
 unlawful levy in a highhanded and oppressive way. Exemplary 
 damages may be given, and it is no excuse that they consulted the 
 counsel of the creditors before acting,^ 
 
 (e) The instruction must make it clear to the jury that the 
 giving of exemplary damages is a matter of discretion.' 
 
 It is clear that as late as the middle of the eighteenth century, 
 in actions of tort, the jury still retained most of its early power, 
 and in certain cases where there were circumstances of aggrava- 
 tion, large verdicts were spoken of as being of an "exemplary" 
 nature.* As rules in ordinary cases became defined and fixed, 
 there emerged from the body of torts a certain class of cases 
 which stood by themselves, i. e., torts showing wilful motive, or 
 wanton negligence as to the consequences of one's acts. In such 
 cases as these "exemplary" verdicts were felt to be peculiarly 
 appropriate, and from them has been developed the modern 
 doctrine of exemplary damages. In some jurisdictions ' the 
 doctrine has been repudiated, and the principle of compensation 
 universally applied in all cases of torts. 
 
 The objections urged against the doctrine have been, first, 
 that it is at variance with the general principles of the law of 
 damages; second, that the use of the form of a compensatory 
 verdict to punish the defendant is unjust; third, that, if pun- 
 ishment is to be inflicted the defendant should not be deprived 
 of his right (as in a criminal court) to have the offence proved 
 "beyond a reasonable doubt"; fourth, that the extent of the 
 punishment is left to the jury, instead of the court, as in a crimi- 
 
 ■ Kujek V. Goldman, 150 N. Y. 176; 34 L. R. A. 156. 
 
 ' Giddings v. Freedly, 128 Fed. 355; 65 L. R. A. 327. 
 
 ' Illinois C. R. R. Co. v. Houchins, 28 Ky. L. R. 499; 1 L. R. A. (n. s.) 
 375. 
 
 * Huckle V. Money, 2 Wils. 205. 
 
 " E. g., Massachusetts, Barnard v. Poor, 21 Pick. 378; New Hampshire, 
 Fay V. Parker, 53 N. H. 342; Colorado, Greely, S. L. & P. Ry. Co. v. 
 Yeager, 11 Col. 345; Nebraska, Riewe v. McCormick, U Neb. 261. 
 
88 ELEMENTS OP THE LAW OF DAMAGES. 
 
 nal trial, and that they may, and frequently do, assess the dam- 
 ages at a sum greater than the fine provided by statute for the 
 same act. 
 
 These objections have not generally prevailed. That the rule 
 is an anomaly may be conceded; but that it tends to produce 
 injustice cannot be made to appear. In the first place, when- 
 ever juries are not allowed to give exemplary damages, they may 
 still give compensation for wounded feehngs, which are entirely 
 at large ; and in the second place, the suggestion of injustice rests 
 upon the mistaken assumption of double punishment for the 
 same oJfe7ice. But the offences punished are really different. In 
 the civil action it is an offence against the plaintiff; in the 
 criminal, the offence is against the community. Thus, in libel, 
 the plaintiff recovers strictly for damage to his reputation, and 
 if exemplary damages are given, they are given to punish the 
 defendant for his wantonness or malice in attacking the plaintiff; 
 but a criminal prosecution for Hbel is founded on the tendency of 
 the hbel to provoke a breach of the peace, and there is no reason 
 where the same act produces two different species of injury that 
 both should not be redressed.' The mere fact that the jury fixes 
 the measure of punishment is not an argument against it. This 
 is not an unknown procedure in the criminal courts, and the 
 only other objection to it — that juries may be under the influ- 
 ence of passion or prejudice — is of no weight, because here, as 
 in every other case, the verdict may be set aside if excessive. It 
 may be said also that all damages, so far as the defendant is 
 concerned, are punitive in their nature. To compel the defendant 
 to make reparation is to inflict a penalty upon him. This is 
 usually measured by the amount of the injury ; but it need not 
 be, and statutes have frequently been passed allowing double or 
 treble damages in cases of wanton injury to property; when 
 plainly the main object is punishment.^ Such double or treble 
 damages are a species of exemplary damages. 
 
 ' Brown v. Swineford, 44 Wis. 282; Fry v. Bennett, 4 Duer, 247; Brown 
 V. Evans, 8 Sawy. 488. 
 
 ' Barnes v. Jones, 51 Cal. 303; Reed v. Davis, 8 Pick. 514; Mich. 
 L. & I. Co. V. Deer Lake Co., 60 Mich. 143; Robinson v. Kime, 70 N. Y. 
 147; Brown v. Swineford, 44 Wis. 282, 288. 
 
NOMINAL AND EXEMPLARY DAMAGES. 89 
 
 It follows from these considerations that the fact that the 
 defendant is liable to a criminal prosecution or has actually 
 paid a fine to the State cannot bar nor even mitigate exemplary 
 damages.' 
 
 This rule seems to be the inevitable consequence of all the 
 considerations by which the doctrine of exemplary damages is 
 supported, and therefore, wherever the doctrine is recognized, 
 cases holding that it does not apply to actions for wrongs which 
 are also criminal offences, on the ground that the defendant 
 should not be twice punished for the same offence ; ^ cases 
 holding that evidence of a conviction and fine may be given for 
 the purpose of mitigating exemplary damages ' -^ or that it is a 
 bar;* cases attempting to distinguish between punitive and 
 exemplary damages in this regard ; ^ cases confusing exemplary 
 with compensatory damages by holding damages for mental 
 suffering, indignity suffered, etc., — to be "exemplary"' must 
 be considered in conflict with the general current of authority, 
 and opposed to principle. 
 
 It is a general rule of the common law that a master, or 
 principal, is responsible for the torts of his agent, or servant, 
 if committed in the scope of his employment, though neither 
 authorized nor ratified by him, and even though the act be 
 malicious.' Different reasons have been given for the rule, but 
 they are all more or less founded on the idea that one who author- 
 izes another to perform certain acts for him, is himself the person 
 
 ■ Brown v. Evans, 8 Sawy. 488; Bundy v. Maginess, 76 Cal. 532; Jef- 
 ferson V. Adams, 4 Harr. 321; Johnson v. Smith, 64 Me. 553; Elliott v. 
 Van Buren, 33 Mich. 49 ; Sowers v. Sowers, 87 N. C. 303 ; Barr v. Moore, 
 87 Pa. St. 385; Edwards v. Leavitt, 46 Vt. 126; Brown v. Swineford, 44 
 Wis. 282. 
 
 ' Murphy v. Hobbs, 7 Col. 541; Huber v. Teuber, 3 McAr. 484; Cheny 
 V. McCall, 23 Ga. 193; Stewart v. Maddox, 63 Ind. 51; Austin v. Wilson, 
 4 Cush. 273; Fay v, Parker, 53 N. H. 342. 
 
 ' Smithwick v. Ward, 7 Jones L. 64; Johnston v. Crawford, 62 N. C. 
 (Phillips) 342; Sowers v. Sowers, 87 N. C. 303; Shook v. Peters, 59 Tex. 
 393. 
 
 * Gust V. Macpherson, 3 Mont. Leg. News, 84. 
 ' Meidel v. Anthis, 71 111. 241. 
 
 • Pegram v. Stortz, 31 W. Va. 220; Beck v. Thompson, id. 469. 
 
 ' Stranahan Bros. C. Co. v. Coit, 65 Ohio St. 398; 4 L. R. A. (n. s.) 606. 
 
90 ELEMENTS OP THE LAW OF DAMAGES. 
 
 who performs them, and if, in the course of their performance, 
 torts are committed, he is himself the person who commits them. 
 In the same way Uability is imputed to corporate bodies for the 
 acts of their agents and employees. It will be seen at once that 
 when we come to consider the application of the rule of exem- 
 plary damages to this class of cases, we are involved in consider- 
 able diiEculties. On the one side it is said that if we impute the 
 tort of servant to master, we should impute the tort as a whole, 
 with all its attendant circumstances of mitigation or aggrava- 
 tion; and consequently that if it was of a wanton or malicious 
 character the principal or master should be liable for the severest 
 rule of damages just as much as for the act itself. This argu- 
 ment is perhaps reinforced by the consideration that otherwise 
 cases of a peculiarly aggravated character may occur where all 
 liability to exemplary damages disappears. The master is 
 responsible in compensatory damages only; having proceeded 
 against him, no action for exemplary damages can be brought 
 against the servant, for there must be at least nominal damages 
 to support exemplary damages; there is no right of action left 
 against him, and consequently the doctrine fails altogether of 
 application. 
 
 On the other hand, it is said that to impute the liability for the 
 tort is one thing; to go further and impute wrongful motive 
 without any evidence of it is going much further; that to a 
 wrongful intent knowledge is an essential requisite, and con- 
 sequently to make a principal liable in this case, actual malice 
 must be brought home to him. 
 
 The difficulty presented has been surmounted in one juris- 
 diction by allowing damages to be recovered for mental suffering 
 caused by aggravated wrong committed by a servant, although 
 exemplary damages are excluded unless the act is either author- 
 ized or ratified. A railway conductor grossly insults a passenger 
 by kissing her. The company is in no way to blame,and escapes 
 responsibility for exemplary damages. For compensatory dam- 
 ages, however, it is responsible, and consequently, for the in- 
 sult, a substantial verdict may be recovered.' 
 
 ' Craker v. Chic. & N. W. Ry. Co., 36 Wis. 657; Robinson v. Superior 
 R. T. Ry. Co., 04 Wis. 345; 34 L. R. A. 205. 
 
NOMINAL AND EXEMPLARY DAMAGES. 91 
 
 The logical difficulty of imputing the motive of a tort to a 
 master is usually no greater than that of imputing the tort 
 itself. The case very seldom happens in which a master directs, 
 authorizes, or ratifies a tort, or is in any way morally responsible 
 except from the single fact of employment of another in his ser- 
 vice. The question how far the tort or its motive shall be imputed 
 to the master is really one, like that of exemplary damages itself, 
 of public poficy. In the case of corporations, which act only by 
 agents, there seem the strongest reasons for a severe rule. 
 
 The results of the application of the rule of exemplary damages 
 to the relation of master and servant are therefore quite different 
 in different jurisdictions. 
 
 Rule. 
 
 17. A principal or master is answerable in exemplary damages 
 for the act of his agent or servant done in the scope of 
 his employment, either (a) only when the principal or 
 master expressly authorized the act as performed, or 
 ratified it, or by gross negligence made it possible, or 
 (6), as held in other jurisdictions, whenever the agent 
 or servant, acting on his own responsibility, would have 
 been so answerable. 
 
 Illustrations. 
 
 (a) A railroad company, by an armed force, organized and 
 commanded by its vice-president and assistant general manager, 
 attacks the agents and employees of another companyi in possession 
 of a railroad, drives them away, and in so doing fires upon and in- 
 jures one of them. In an action brought by him against the rail- 
 road, it is held that the jury may give exemplary damages.' 
 
 (6) The conductor of a train arrests a passenger in an illegal, 
 wanton, and oppressive manner, the company not having in any 
 way authorized or ratified the act. The company is not responsible 
 in exemplary damages.^ 
 
 (c) A brakeman acting in the course of his employment un- 
 
 ' Denver & R. G. Ry. v. Harris, 122 U. S. 597. 
 
 = Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101; cf. Haines v. 
 Schultz„SO N. J. L. 481. 
 
92 ELEMENTS OP THE LAW OP DAMAGES. 
 
 necessarily makes a violent attack upon a passenger. This is a 
 proper case for a verdict for exemplary damages against the rail- 
 road.' 
 
 (d) A druggist's assistant dispenses morphine instead of cal- 
 omel, causing a child's death. This being gross negligence, the 
 employer is liable in exemplary damages, although he has exercised 
 due care in the selection of his assistant.^ 
 
 (e) Plaintiff, who had occupied the office of attorney general 
 and is on his way to deliver a political speech, is compelled wrong- 
 fully to leave a train. Although no one is present but the conductor, 
 brakeman, and plaintiff, exemplary damages are recoverable for 
 the indignity and humiliation.' 
 
 (/) A telegraph operator acting within the scope of his em- 
 ployment, but negUgently or in bad faith, transmits a libellous 
 message. The company is responsible in exemplary damages.* 
 
 (g) A fireman on a train wantonly throws live ashes from the 
 engine on to a bystander. Exemplary damages may be given.^ 
 
 In some jurisdictions it is held that where nominal damages 
 are recovered, there is nothing for exemplary damages to attach 
 to, and hence that they cannot be given.* But the better opinion 
 is that they are not dependent on actual pecuniary loss ; being 
 frequently given where the vprong done is incapable of measure- 
 ment by a money standard. Damages which in some juris- 
 dictions are treated as capable of pecuniary measurement, i. e., 
 damages to feelings, would in others which do not follow this 
 rule wholly disappear unless allowed as exemplary. 
 
 Rule. 
 
 18. To recover exemplary damages the plaintiff must establish 
 the right to nominal damages or prove substantial damage. 
 
 • Hanson v. European & N. A. R. R. Co., 62 Me. 84. 
 
 ' Smith's Administratrix v. Middleton, 112 Ky. 588; 56 L. R. A. 484. 
 ' Kansas City F. S. & M. R. Co. v. Little, 66 Kan. 378; 61 L. R. A. 122. 
 ' Peterson v. W. U. Tel. Co., 75 Minn. 368; 43 L. R. A. 681. 
 » Louisville & Nashville R. R. Co. v. Eaden, 29 Ky. L. 365; 6 L. R. A. 
 (N. B.) 581. 
 
 • Kuhn V. Chicago, M. & St. P. R. R. Co., 74 la. 137, 141 ; cf. Maxwell 
 V. Kennedy, 60 Wis. 646, 649. 
 
nominal and exemplary damages. 93 
 
 Illustrations. 
 
 (o) A. brings an action against county commissioners to recover 
 damages for their wilful refusal to levy a tax to pay off a judgment 
 held by him. The plaintiff may recover exemplary damages, 
 though his actual damage was merely nominal.^ 
 
 (b) The cause of action is unwarranted publication of an 
 author's manuscript. If wanton and reckless indifference to plain- 
 tiff's rights appears, exemplary damages may be given though no 
 actual damages be proved.^ 
 
 (c) Under a statute giving a wife an action for damages to per- 
 son and property caused through the intoxication of her husband 
 by one who sells him liquor, the right of action depends on proof 
 of actual damage. In case no such proof is made, exemplary 
 damages are not recoverable.^ 
 
 (d) The action is for assault. The extent of the actual dam- 
 age is not shown. This is no objection to a verdict, for exemplary 
 damages.* 
 
 Rule. 
 
 19. Upon the question of exemplary damages, all circuw/- 
 stances tending to show the nature of the motive are 
 receivable in evidence.^ 
 
 Illustration. 
 
 (a) In an action against a railway company for unlawfully eject- 
 ing a passenger from its cars, evidence on the part of the conductor 
 that at the time he ejected the plaintiff he believed that plaintiff 
 had not surrendered any ticket, and that he believed it to be his 
 duty to put plaintiff off if he did not pay his fare, is competent upon 
 the question of exemplary damages.* 
 
 ' Wilson V. Vaughn, 23 Fed. 229; Hefley v. Baker, 19 Kan. 9; contra, 
 Stacy V. Portland Pub. Co., 68 Me. 279. 
 
 ' Press Pub. Co. v. Monroe, 38 U. S. App. 410; 51 L. R. A. 353. 
 
 " Ganssly v. Perkins, 30 Mich. 492; Meidel v. Anthis, 71 111. 241. 
 
 * McConathy v. Deck, 34 Col. 461; 4 L. E. A. (n. s.) 358. 
 
 « Millard v. Brown, 35 N. Y. 297. 
 
 " Yates V. N. Y. C. & H. R. R. R. Co., 67 N. Y. 100. This is not true 
 of the question of compensatory damages, because "if the plaintiff was 
 Tinlawfully ejected from the cars, the good faith of the conductor would 
 
94 ELEMENTS OF THE LAW OF DAMAGES. 
 
 The question how far the motive of one can affect another 
 also arises in the case of joint and several torts. In ordinary 
 cases of trespass to person or property the plaintiff may bring his 
 action against all, or any one or more, and he recovers damages 
 as a whole, for all are supposed to be equally liable. But if one 
 of the defendants has been actuated by a malicious motive, and 
 another is merely technically liable (responsible, e. g., for nom- 
 inal damages only), it is obvious that to fasten the motive of 
 one upon the other would be unjust. Hence, in this case, the 
 better opinion seems to be that if the plaintiff wishes to recover 
 exemplary damages, he must select the defendant whom he 
 wishes to hold to the severer rule, and proceed against him.' 
 
 Rule. 
 
 20. Exemplary damages may be given in cases of gross 
 negligence. 
 
 Illustration. 
 
 A property owner in the exercise of his rights (but mistaking 
 him for an intruder whom he had just ejected) strikes and injures 
 a stranger. If the act is reckless and the result of gross negligence, 
 exemplary damages may be given. ^ 
 
 To understand what is meant by this rule it is necessary to 
 notice briefly what are known as the "three degrees of negli-- 
 gence." In Coggs v. Bernard,' Lord Holt appeai-ed to classify 
 negligence as slight, ordinary, and gross, and the result was the 
 doctrine of three correlative degrees of care, — slight negligence 
 being want of great care, ordinary negligence being want of 
 ordinary care, and gross neghgence being want of slight care. 
 
 not be a defence, nor impair the right of the plaintiff to actual damages." 
 "To have presented the point of immateriality properly upon the question 
 of compensatory damages, the counsel for the plaintiff, when this evidence 
 was offered, should have disclaimed any claim for any further damages." 
 Per Church, C. J., 67 N. Y. 103. 
 
 ' Clark V. Newsam, 1 Ex. 131 ; McCarthy v. De Armit, 99 Pa. St. 63. 
 
 ' Crabtree v. Dawson, 119 Ky. 148; 67 L. R. A. 565. 
 
 « 2 Ld. Raymond, 909. 
 
NOMINAL AND EXEMPLARY DAMAGES. 95 
 
 The matter has been much discussed since that time, and it has 
 been made very clear that in determining the question of liability 
 this classification has no significance. This question is solely, 
 Has the defendant shown that lack of care which the law re- 
 quires under the circumstances of the case ? ' 
 
 But when we look not at tlie question of hability, but at that 
 of ctdpability and motive (which come into view the moment 
 the jury is asked to give exemplary damages), the term gross 
 negligence adds something to the notion of liability. The dictum 
 of Rolfe, B., in Wilson v. Brett, that "gross negligence" is only 
 negligence with a "vituperative" epithet is not accurate. The 
 epithet is not vituperative, but condemnatory; and in using 
 it the language of the law merely conforms to that of ordinary 
 life. Until we are ready to affirm that gross negligence itself 
 cannot exist, the term will continue in use. If this view is 
 sound, the negligence which establishes liability is the absence 
 of the care which the law requires under the circumstances of the 
 case; gross negligence means a gross case of it. The precise 
 point at which negligence becomes gross negligence is one which 
 it is impossible to define in advance, but which juries probably 
 find it easy to pass upon. In a Florida case, the court attempted 
 a definition as follows : It is not proper to charge a jury that 
 "gross negligence" will warrant exemplary damages; they 
 should be instructed that there must be "that entire want 
 of care which would raise the presumption of a conscious in- 
 difference to consequences, or which shows wantonness or 
 recklessness, or a grossly careless disregard of the safety and 
 welfare of the public, or that reckless indifference to the rights 
 of others which is equivalent to an intentional violation of 
 them." ' 
 
 From what has been said, it will be seen that the rule of 
 exemplary damages is not one which belongs to the domain 
 of contract. It is with reference to torts that the question of 
 injury to feelings, outrage, and verdicts for the sake of example 
 
 » Wilson V. Brett, 11 M. & W. 113; The New World v. King, 16 How. 
 469; Perkins v. N. Y. Cent. R. R. Co., 24 N. Y. 196, 207; Milwaukee & 
 St. P. Ry. Co. V. Arms, 91 U. S. 489, 495. 
 
 ' Florida Southern Ry. Co. v. Hirst, 30 Fla. 1, 39. 
 
96 ELEMENTS OF THE LAW OF DAMAGES. 
 
 belong. There is one class of cases, however, that of actions 
 against carriers of passengers, in which the responsibiUty in 
 contract and tort are so commingled that it is very difEcult to 
 keep them separated. The same act at once is often a breach of 
 contract of carriage and a tort. In Knoxville T. Co. v. Lane ' 
 we find the court holding that exemplary damages may be 
 recovered by a passenger for insulting behavior on the part of 
 an employee, expressly on the ground that it is part of the con- 
 tract of carriage that a passenger shall receive proper and polite 
 treatment. Such a wrong, when imputed to the corporation at 
 all, is usually treated as a breach of duty quite independent of 
 the contractual relation. 
 
 Illustration. 
 
 A passenger sues for failure to carry, the cause of the failure 
 being due to the physical condition of the roadbed and equipment. 
 Held, that the negligence was not so gross as to warrant exemplary 
 damages. On a rehearing, held, that the action was not in tort 
 and that there was no foundation for exemplary damages.' 
 
 The Right to Exemplary Damages not Property. — It 
 has often been said that the right to recover damages for an 
 injury is a species of property, and vests in the person injured on 
 the commission of the wrong. ^ Whatever view we may take of 
 this as a question of legal analysis, there is no doubt that under 
 our system of constitutional Umitations it is a property right, 
 and consequently cannot be limited or qualified by the legislature 
 at will. Thus the legislature cannot deprive a person libelled 
 of his right to recover full compensation by providing that in 
 case of a proper retraction he shall only recover damages in 
 respect to his property, business, trade, profession, or occupation. 
 
 ' 103 Tenn. 376; 46 L. R. A. 549. • 
 
 ' Hansley v. Jamesville & W. R. R. Co., 115 N. C. 602; 117 N. C. 565; 
 32 L. R. A. 643; 44 Am. State Rep. 474; 53 id. 600. 
 ' 2 Blackstone's Comm. 438. 
 
NOMINAL AND EXEMPLARY DAMAGES. 97 
 
 This would limit him to special damages. On the other hand, it 
 has been held that the right to exemplary damages may be 
 taken away in such a case, this being not a property right, but a 
 matter of discretion and public policy.' 
 
 = Osbom V. Leach, 135 N. C. 628; 66 L. R. A. 648, and cases cited. 
 
CHAPTER VIII. 
 
 ELEMENTS OF INJURY. 
 
 Compensation in courts of law is necessarily awarded in 
 money. The injuries for which it is awarded are of various 
 kinds, according as they affect the person, property, or rights of 
 contract. They may be divided into three entirely distinct 
 species: 1. Damage to legal right only (nominal damages). 
 
 2. Substantial injuries of a temporal or pecuniary character. 
 
 3. Injuries also substantial, but non-temporal and non-pecuniary 
 in their effect. Nominal damages have already been considered. 
 
 It should be noticed at the outset that the difficulty, or even 
 impossibility, of estimating with certainty in money the amount 
 of injury done is never a reason for refusing redress ; * the rule 
 of certainty has no appUcation here. If this diiBBculty were 
 allowed to stand in the way of compensation, many injuries 
 would fail of redress altogether. 
 
 Where injuries are spoken of as pecuniary, the meaning of 
 the phrase is either that money itself has been lost, or that the 
 damage is such as can be, and usually is, in ordinary estimation, 
 measured by a pecuniary standard, — loss of time, for instance, 
 or the loss of the 'use of property. Breaches of most forms of 
 contract, and interference with property rights as such, i. e., 
 where the question is solely that of the value of property taken, 
 detained, or damaged, fall under this head. In all other cases, 
 i. e., where the person, taken in its largest sense, is affected, while 
 the award of damages must be pecuniary, the injury is at least 
 in part non-pecuniary. The pain of a blow, the mental suffer- 
 ing caused by libel, the loss of the society of a wife, are instances. 
 The mere statement of their nature shows that there is no 
 pecuniary standard which can be applied, and in all such cases 
 
 * Ballou V. Famum, 11 Allen, 73. 
 
ELEMKNTS OF INJURY. 99 
 
 the damages are, as has already been explained, very much at 
 large, or in the discretion of the jury. One case serves little as 
 a guide in another, and this whole field of the law is widely 
 separated from the other, in which exact methods of computing 
 damages can generally be arrived at. 
 
 If the elements of injury in actions of contract were always, 
 as they are generally, pecuniary, damages for them would be 
 entirely measured by fixed rules of law. But exceptional cases 
 may exist. A contract usually involves only pecuniary elements 
 of injury, because the loss by being deprived of the benefit of the 
 promise is usually of a pecuniary character. This may be said 
 of all contracts of service, of bills and notes, insurance, sales, 
 warranty, indemnity, agency, etc. But there are contracts em- 
 bodying promises of an entirely different nature. One of the 
 most evident elements of damage in the case of the breach of a 
 promise to many is injury to the feelings; the same may often 
 be true in cases of breach of a contract to convey the news of 
 an important fact with regard to a family, such as death or 
 marriage. It is to such cases as these that we must direct our 
 attention if we wish to know whether the rule that on breach of 
 contract only pecuniary elements of injury are considered is 
 universal. 
 
 In actions for the breach of contract for the conveyance of 
 telegraphic messages, the matter is obscured by the fact that the 
 plaintiff is generally at Uberty to bring either an action of tort 
 or contract, or in jurisdictions where there is only one form of 
 action, an action as to which it may be impossible to tell whether 
 it sounds in tort or contract. Now, if the action is tort, as already 
 explained, the non-pecuniary elements are to be considered as 
 of course. 
 
 As to physical pain, for instance, resulting from personal in- 
 jury, there has never been any question. This element of injury 
 is so closely connected and bound up with the material damage 
 suffered that it is always sued for and allowed.' In Inconven- 
 
 ' Ransom v. N. Y. & E. R. R. Co., 15 N. Y. 415; Lake Shore & M. S. 
 Ry. Co. V. Frantz, 127 Pa. St. 297; Phillips v. South Western Ry. Co., 
 4 Q. B. D. 406. In such actions the mental suffering necessarily involved 
 is always allowed for. McDennott v. Severe, 202 U. S. 600. 
 
100 ELEMENTS OF THE LAW OF DAMAGES. 
 
 ience, on the other hand, we have a kind of injury which may be 
 material, and may be purely mental in ejffect. For physical in- 
 convenience damages have been specifically allowed, even in 
 contract,* while inconvenience producing mere annoyance has 
 been disallowed.^ These cases illustrate two rules elsewhere 
 stated : (1) That in contract, as a rule, nothing is allowed ex- 
 cept for material damage, and (2) the rule that where the most 
 ordinary and obvious measure of compensation fails, the law 
 reverts to an alternative rule, if one can be found. Both were 
 cases of the breach of contract of carriage. In the second, dam- 
 ages were refused for disappointment of mind ; in the first, where 
 the passenger was put down at a wrong station, it was admitted 
 that he might, had there been a carriage there, have hired it and 
 charged the expense to the carrier. But there was no car- 
 riage; he was allowed an analogous measure of compensation 
 for the physical inconvenience of having to walk. This incon- 
 venience, which money paid for a carriage would otherwise have 
 obviated, was the precise measure of the advantage of the con- 
 tract of which the plaintiff had been deprived. 
 
 A religious society brings an action against a railroad for a 
 nuisance consisting of a building for housing locomotive engines 
 established close by a building used for Sunday-schools and pub- 
 lic worship by the society. It is proper for the court to charge 
 the jury that the congregation is entitled to recover damages 
 (although its property may have increased in value) because 
 of the inconvenience and discomfort suffered by them.^ 
 
 Many other cases might be cited to show that where material 
 damage has been occasioned, not only physical pain but in- 
 convenience and discomfort will be compensated. A more im- 
 portant question is when and under what circumstances mental 
 suffering, accompanied or unaccompanied by any physical dam- 
 age is an element of legal injury. 
 
 The question has been much confused by the dictum of a 
 judge of high reputation. In Lynch v. Knight,* decided by the 
 
 ' Hobbs V. London & S. W. Ry. Co., L. R. 10 Q. B. 111. 
 
 ' Hamlin v. Great Northern Ry. Co., 1 H. & N. 408. 
 
 ' Baltimore & Potomac R. R. v. Fifth Baptist Church, 108 U. S. 317. 
 
 ^ 9 H. L. C. 577. 
 
&/ 
 
 <f/> 
 
 NOM 
 
 ELEMENTS OP INJURY. \ \ 1PF^0 /f)lj 
 
 House of Lords in 1861, the action was broughr 
 
 K. and his wife for slander of the wife. The words^ 
 
 of (addressed to K.) imputed to her that she had almost been 
 
 seduced by C. before her marriage, and stated that K. ought not 
 
 to allow C. to enter his house. The special damage was that K. 
 
 beUeved the story, and forced his wife to go back to her father, 
 
 whereby she lost the consortium of her husband. 
 
 The defendants demurred on the ground that the damage 
 was too remote; that the damage was not a "temporal" {i. e., 
 material) loss; and that the damage came from K.'s own wrong- 
 ful act. Lord Brougham, Lord Cranworth, and Lord Wensley- 
 dale delivered opinions, and Lord Brougham incorporated in his 
 opinion that of the late Lord Chancellor, Lord Campbell, who 
 had previously died, after hearing the argument. The words 
 were clearly not actionable in themselves, there was no allega- 
 tion of mental anguish in consequence of the slander,' and the 
 only question in the case was whether the wife's loss of consor- 
 tium was proximate special damage of a material character, such 
 as would support an action for slander. The opinions of Lord 
 Brougham, I^rd Cranworth, and Lord Campbell all rest on the 
 fact that the damage was not proximate. To send his wife away 
 on the strength of such a story without inquiry was not a natu- 
 ral consequence. This decided the case, and there was no need 
 of anything further. Lord Wensleydale, however, undertook 
 to show that apart from this the action could not be main- 
 tained, on the ground that the loss of the consortium of the hus- 
 band could, in a wife, only produce mental suffering or anxiety, 
 not material damage, and that therefore, while he could sue for 
 the loss of the wife's consortium, an action could not be brought 
 in her name for the loss of his. He loses her service; but she 
 does not lose her maintenance, as he is still bound to supply it ; 
 and without an averment to that effect, it cannot be supposed 
 that he does not do so. Her only suffering is mental, and "men- 
 tal pain or anxiety the law cannot value, and does not pretend 
 to redress, when the unlawful act complained of causes that 
 alone; though where a material damage occurs, and is connected 
 
 ' 9 H. L. C. 591. 
 
102 ELEMENTS OP THE LAW OF DAMAGES. 
 
 with it, it is impossible a jury, in estimating it, should altogether 
 overlook the feelings of the party interested." * 
 
 This remark was obiter. The case had already been disposed 
 of, first, because the damage was remote, and second, because, 
 according to Lord Wensleydale's opinion, there was no material 
 damage such as is required in slander to support the action. 
 Consequently there was no reason to lay down any general prop- 
 osition to the effect that there is a principle of law that mental 
 suffering shall not be redressed except where there is material 
 damage. Yet these words have ever since been quoted asjL 
 they were the decision in the case.^ ■'^ 
 
 This case, then, cannot be regarded as having decided the 
 question whether, and under what circumstances, mental suffer- 
 ing can be allowed for as an element of damages. But more 
 than this, it has been repeatedly cited as authority for the propo- 
 sition that except in cases of physical injury, mental suffering 
 cannot be allowed for. There is nothing of the sort in the case. 
 Lord Wensleydale's language is material damage. The latter is 
 much wider than the former, including damage to estate, as well 
 as bodily injury. But is it necessary to show damages even of 
 this kind to recover for mental suffering? 
 
 The subject deserves the more attention because the line 
 dividing cases which permit such recovery from those which do 
 not is one which illustrates several pecuUarities of the law of 
 damages. 
 
 In the first place, with regard to this kind of damage the 
 form of the action is still in many jurisdictions of the utmost 
 importance, and the reason is a substantial one. For pure 
 breaches of contract in general the governing principle, as has 
 been aheady stated, is that the elements of injury are pecuniary 
 
 ' 9 H. L. C. 598. 
 
 ' The importance of tMs case will, it is hoped, excuse this somewhat 
 minute analysis. In this cotmtry a wife may in some juiisdictioiM bring 
 an action for the loss of her husband's consortium. Cooley on Torts, *227, 
 note 2, and cas. cit. Why it should be supposed that the wife suffers no 
 material damage from the loss of her husband's consortium in such a case 
 as the above is hard to see. Is not turning a married woman out of her 
 husband's house, to the shelter and comfort of which she is entitled, a 
 material damage? 
 
ELEMENTS OP INJtJRT. 103 
 
 in their nature, and consequently for mental suffering caused by 
 the breach there is no redress. An illustration of this rule has 
 just been given. In actions for breach of promise of marriage, 
 however, the plaintiff is allowed to recover for injuries to her 
 feelings.* And so it has been frequently held, in cases of failure 
 to deUver a telegraphic message of such a character that the 
 primary result is mental suffering,^ that such damages may be 
 given. The principle which linderUes all such cases seems to be, 
 in the language of the decision just cited, that " where other than 
 pecuniary (t. e., material) benefits are contracted for, other than 
 pecuniary standards will be applied." 
 
 Viewed in this light the exceptions confirm the ordinary rule 
 of exclusion. In the case of failure to deliver an article sold, or 
 to render services contracted for, what both parties contemplate 
 is their material advantage. It is impossible to contend that 
 under the rule in Hadley v. Baxendale they may be regarded as 
 contemplating mental distress as the consequence of a breach. 
 
 But in cases in which the contract contemplates something 
 quite different from material advantage, there seems no reason 
 why non-pecuniary elements should not be considered. 
 
 One of the commonest instances of the recovery of damages 
 for mental suffering in many American jurisdictions is that of 
 actions for such injuries as would in other jurisdictions warrant 
 exemplary damages. But here the recovery may still, in some 
 jurisdictions, be made to depend, in actions for personal injury 
 (when there is a breach of contract as well as a tort), upon the 
 form of the action. In the majority of American jurisdictions 
 the statement of the cause of action in such cases does not dis- 
 close whether it sounds in tort or contract. 
 
 M. brings an action of contract to recover damages against 
 a railroad company for failure to carry him from S. to N. It 
 appears on the trial that the conductor wrongfully arrested the 
 plaintiff at an intermediate station for evading payment of his 
 fare, that he was detained in custody over night, and subjected 
 to indignities. On the trial, M. is held entitled to recover 
 damages for mental suffering. This ruling is erroneous. 
 
 ' Vanderpool v. Richardson, 52 Mich. 336. 
 » Wadsworth v. W. U. Tel. Co., 86 Tenn. 695. 
 
104 ELEMENTS OF THE LAW OF DAMAGES. 
 
 The action being one of contract, no such damages can be 
 recovered.' 
 
 In all those jurisdictions in which exemplary damages are not 
 allowed, mental suffering in all cases of aggravated torts is 
 allowed for, as matter of compensation. For example, if the 
 action is trespass accompanied by outrage, the plaintiff recovers 
 for wounded feelings, when in another jurisdiction the same 
 facts would be ground for an exemplary verdict. This of course 
 is strong proof that there is no rule of law that mental suffering 
 is not a proper subject for compensation. But the question comes 
 up also in jurisdictions which do allow exemplary damages, and 
 it is settled that exemplary damages, when allowed, are in addi- 
 tion to compensatory damages.^ Now the nature of the case 
 may exclude the possibility of exemplary damages and yet be 
 such as to raise the question of mental suffering. It has been 
 seen that in many jurisdictions exemplary damages cannot be 
 recovered against a principal for the wrongful but unauthorized 
 act of his agent, because, though responsible for the act, the prin- 
 cipal cannot be responsible for the motive of the agent. The 
 damages accordingly must be Umited to compensation, and it 
 has been held in a carefully considered case that compensation 
 may include damages for mental suffering.' In the common 
 case of expulsion from street cars or public places, it is now gen- 
 erally held that among the elements of compensatory damages 
 are any humiliation and mental suffering inflicted.* 
 
 It must be admitted that, as a general rule, compensatory 
 damages for injury to feelings are not given where exemplary 
 damages are allowed. But this is because exemplary damages 
 are given on proof of the very same facts of outrage, wanton care- 
 lessness, etc., which- would in other jurisdictions warrant com- 
 pensation for mental suffering, and hence the allowance of them 
 does not show that there is any principle of law which excludes 
 proof of mental suffering. 
 
 ' Murdock v. Boston & A. R. R. Co., 133 Mass. 15. 
 2 Harrison v. Ely, 120 111. 83; McWilliams v. Bragg, 3 Wis. 424. 
 ' Craker v. Chicago & N. W. Ry. Co., 36 Wis. 657. 
 ^ Gillespie v. Brooklyn Heights R. R. Co., .178 N. Y. 347; 66 L. R. A. 
 618; Davis v. Tacoma R. & P. Co., 35 Wash. 203; 66 L. R. A. 802. 
 
ELEMENTS OF INJURY. " 105 
 
 Enough has been said to show that mental suffering is al- 
 lowed for in some cases as an element of damage. The question 
 still remains, What is the governing principle ? 
 
 The matter would be relieved of some of its difficulties if it 
 were always borne in mind that there are many varieties of men- 
 tal suffering. A slight or insult effected by spoken words pro- 
 duces one kind of mental suffering; an act may wound the 
 feeliflgs or affections, it may produce fear, anxiety, distress, etc. 
 Now the common law does not regard mere slights and insults 
 as actionable wrongs, and it is partly, perhaps, because these are 
 among the acts most commonly productive of mental suffering 
 that the inference has been drawn of an inherent unwilhngness 
 in the law to give damages for mental suffering in any case. 
 But the real reason seems to be that, there being no right of ac- 
 tion for such offences, there is no question of what the elements 
 of damage are. 
 
 While it is not pretended that all the cases can be reconciled, 
 the principles on which the subject rests are believed to be 
 (1) that, as a general rule, mental suffering is not a cause of 
 action ; (2) that damages for it can only be allowed as a conse- 
 quence of some recognized cause of action ; and (3) that whether 
 it will be taken into the account in a given case depends very 
 much on the kind of act or omission complained of; i. e., whethel* 
 it is of such a character that mental suffering is a natural, nor- 
 mal, and proximate consequence. 
 
 To vary sKghtly Lord Wensleydale's dictum, we may say that 
 whenever there is legal injury, since there is a right to a verdict 
 for nominal damages, there is, in a certain sense, material 
 (not necessarily physical) damage, and therefore, a right of 
 action once established, if mental suffering is the ordinary, 
 natural consequence of it, mental suffering may be allowed 
 for; otherwise not. 
 
 Supposing, then, that the character of the action as sounding 
 in tort and contract is plain, a slightly different result must ensue 
 in the two cases. 
 
 1. In tort, a complaint setting up mental suffering produced 
 by some indifferent act of the defendant does not state a cause 
 of action. The mere fact that A. has caused B. mental suffering 
 
106 ELEMENTS OF THE LAW OF DAMAGES. 
 
 does not give the latter a right to redress. Acts and threats may 
 produce fright; insults and rude behavior may wound the feel- 
 ings and cause great mental distress, but they are not necessarily 
 actionable. And this for a variety of reasons. Insolent, rude, or 
 brutal behavior will produce, or fail to produce, mental distress, 
 according as the strength, courage, and sensitiveness of the per- 
 son concerned is greater or less. What will greatly distress one 
 person will only cause amusement to another, and the same 
 person may be differently affected at different times. Now proof 
 can only come from him ; the defendant has no means of disprov- 
 ing what he may say on the subject ; the evidence is incapable of 
 certainty; and hence, were such an action allowed, it must al- 
 ways terminate in the plaintiff's favor. ^ 2. Mental suffering 
 accompanying, and caused by, an actionable act or omission of 
 any kind, may be an element of damage. The most common 
 instance is that sort of mental suffering, fright, and anxiety which 
 attends* upon a physical injury causing pain. 3. This is not 
 confined to cases of physical injury, but includes every case 
 where the plaintiff has a right of action, the nature of which is 
 such that mental suffering is a direct consequence^ 4. In con- 
 tract, the breach alone gives a right of action ; and if this entailed 
 the right in every case to recover for mental suffering, the rule 
 which makes the measure in ordinary cases of contract pecuni- 
 ary would be completely done away. In contract, then, mental 
 suffering is not allowed unless the subject of the cootract is such 
 that the breach itself sounds in mental suffering; e. g., breach of 
 promise. The cases are extremely rare. Even in jurisdictions 
 which allow the recovery of damages for mental suffering for 
 failure to deliver telegrams conveying intelUgence, the failure to 
 receive which would naturally cause mental distress, the rule 
 excluding such damages in the case of business messages is 
 rigidly applied. 5. Whatever the form of the action, damages 
 for mental suffering are always rejected where the proof of them 
 rests wholly in the evidence of the plaintiff, and they are con- 
 sequently conjectural, or where there is not that connection 
 between the cause of action and the damages which the law 
 requires. 
 
 ' Terwilliger v. Wands, 17 N. Y. 54. 
 
ELEMENTS OF INJURY. 107 
 
 Illustrations. 
 
 (o) Any attempt to do bodily harm, so as to put the person 
 justly in fear of it, is actionable as an assault. Damages are re- 
 coverable, although no physical harm is done.' 
 
 (6) Defendant to force plaintiff to move out of a house goes 
 there while she is alone with her young children, prepares to set 
 fire to the house and threatens her with death, taking aim with a 
 gun. Plaintiff in alarm flees for refuge to the nearest neighbor, a 
 mile away ; the night is cold ; she is insufficiently clothed, and con- 
 tracts an illness which lasts for two or three months. This is an 
 assault for which an action will lie, and damages for mental suffer- 
 ing may be given.' 
 
 (c) A. sues B. for injuring a horse in a brutal manner, accom- 
 panying the act with malicious insults. He is entitled to com- 
 pensation for the injury to his feelings.^ 
 
 (d) W. circulates a report about T. which causes him mental 
 distress. The words in themselves are not actionable. This men- 
 tal distress gives no right of action.* 
 
 (e) The words spoken are actionable. Recovery may be had 
 for mental suffering caused by them.* 
 
 (/) The action is for personal injury. The plaintiff may intro- 
 duce evidence showing loss of mental power." 
 
 (g) The action is for wrongful expulsion of a railway passenger. 
 The jury may give damages for the annoyance, vexation, and 
 indignity.' 
 
 (h) Tlie action is trespass upon lands, the plaintiff claiming to 
 recover for the removal of the remains of his deceased child from 
 
 » I. de S. V. W. de S., Y. B. Lib. Ass., fol. 99, pi. 60; Beach v. Hancock, 
 27 N. H. 223. 
 
 2 Kline v. Kline, 158 Ind. 602; 58 L. R. A.'i97. The court points out 
 that this decision is not out of accord with W. U. Tel. Co. v. Ferguson, 
 157 Ind. 64; 54 L. R. A. 846, which fonnally repudiates the doctrine 
 (earlier countenanced in Indiana) that in negligence cases mental anguish 
 alone is an actionable wrong. 
 
 « Kimball v. Hobnes, 60 N. H. 163. 
 
 * Terwilliger v. Wands, 17 N. Y. 54; cf. Allsop v. AUsop, 5 H. & N. 534. 
 
 • Adams v. Smith, 58 111. 417; Swift v. Dickerman, 31 Conn. 285. 
 
 " Ballou V. Famum, 11 All. 73. So of loss of child-bearing power. Nor- 
 mile V. Wheeling T. Co., 57 W. Va. 132; 68 L. R. A. 901. 
 ' Chicago & Alton R. R. v. Flagg, 43 111. 364. 
 
108 ELEMENTS OF THE LAW OP DAMAGES. 
 
 a cemetery lot. It is proper to instruct the jury that if the evidence 
 shows wanton disregard of plaintiff's rights, the jury inay consider 
 the injury to plaintiff's feelings.' 
 
 (i) The action is for neglecting to replace a furnace. The 
 evidence is that the plaintiff's infant child was ill with bronchitis, 
 and on account of the destruction of the furnace had to be taken 
 care of in the kitchen. The plaintiff may recover on the score of 
 anxiety and annoyance.^ 
 
 (j) The action is for .the unlawful mutilation and dissection of 
 the body of plaintiff's deceased husband. The plaintiff may re- 
 cover for mental suffering.^ 
 
 (k) F. is ejected from a train, being compelled to jump off while 
 the train is in motion, through fear of the conductor, who threatens 
 to push him off. His fear is intensified by reason of his physical 
 condition. His consequent mental suffering is a proper element of 
 damage.* 
 
 (l) A tortious refusal to pay money to plaintiff forces him to 
 travel twenty-four hours with his family without food. He is en- 
 titled to recover for pain and illness caused by this, and incidentally 
 for mental suffering.^ 
 
 (m) Plaintiff's children are wrongfully ejected from a train. As 
 a result of the fright caused by this, her health is permanently 
 injured. No actionable wrong having been done her, she cannot 
 recover." 
 
 (n) The fright and consequent illness are caused by negligent 
 blasting, imperilling plaintiff's safety. A recovery can be had.' 
 
 (o) A telegram, informing plaintiff of the death of his brother 
 and the time and place of his funeral, is not delivered. No dam- 
 
 ' Meagher v. DriscoU, 99 Mass. 281. 
 
 = Vogel V. McAuliffe, 18 R. I. 791. 
 
 ' Larson v. Chase, 47 Minn. 307; ace. Koerber v. Patek, 123 Wis. 453; 
 68 L. R. A. 956. So where the injury to the remains is caused by a carrier's 
 negligence. Lyndh v. Great Northern Ry. Co., 99 Minn. 408; 7 L. R. A. 
 (n. 8.) 1018. 
 
 * Fell V. Northern Pac. R. R. Co., 44 Fed. R. 248; cf. Johnson v. 
 Wells, Fargo, & Co., 6 Nev. 224; 3 Am. R. 245, where many authorities on 
 the subject of the allowance of damages for mental suffering accompany- 
 ing physical pain are collected. 
 
 ^ W. U. Tel. Co. V. Wells, 50 Fla. 474; 2 L. R. A. (n. s.) 1072. 
 
 ' Sanderson v. Northern Pacific Ry. Co., 88 Minn. 162; 60 L. R. A. 403. 
 
 ' Watldns v. Kaolin Mfg. Co., 131 N. C. 536; 60 L. R. A. 617. 
 
ELEMENTS OF INJURY. 109 
 
 ages for disappointment in not being informed in time to attend 
 the funeral are recoverable.' 
 
 (p) The contract is that of a carrier to transport the corpse of 
 A.'s wife ; the delay causes a postponement of the funeral. Dam- 
 ages for mental suffering may be recovered by A.' 
 
 (q) Breach by a telegraph company of its contract to transmit 
 money. . Damages for annoyance, worry, and mental anguish can- 
 not be recovered.^ 
 
 (r) Action for dishonoring check. Plaintiff may recover for 
 time lost, expenses incurred, and losses sustained, but not for a 
 nervous chill suffered.* 
 
 The foregoing cases seem to show that the allowance of dam- 
 ages for mental suffering is not prohibited by any principle of 
 law. Wherever a rigid rule is allowed to have that effect, the 
 result is that wrongs must often go unredressed. Thus in a 
 leading case in England where action is brought to recover for 
 nervous shock caused a woman exposed to the danger of a rail- 
 way collision we find a substantial verdict set aside, though the 
 medical evidence showed that an illness has been caused by the 
 fright.^ And in this country, where, by negligence in blasting, 
 rocks are thrown on to plaintiff's adjoining lands and buildings, 
 it has been held that fear and anxiety are not proper elements of 
 damage." 
 
 ■ W. U. Tel. Co. V. Rogers, 68 Miss. 748. In this case the court 
 says that the "long established and almost universal rule of law" is that 
 no action will lie for damages for mere mental suffering, "disconnected 
 with physical injury, and not the result of the wilful wrong of the defend- 
 ant." Another reason, however, given by the court, is conclusive, that in 
 this case the evidence of mental suffering must come wholly from the 
 plaintiff, and was conjectural. In a case of the same §ort in Tennessee, 
 whpre a sister claimed damages for mental suffering caused by being pre- 
 vented from attending her dying brother, it was held on demurrer that 
 the action lay. There was a right of action independent of those damages, 
 but the main question discussed was that of mental suffering. Wadsworth 
 V. W. U. Tel. Co., 86 Tenn. 695. 
 
 == Louisville & Nashville R. R. Co. v. Hull, 113 Ky. 561; 57 L. R. A. 771. 
 
 ' Robinson v. W. U. Tel. Co., 24 Ky. L. R. 452; 57 L. R. A. 611. 
 
 ' American National Bank v. Morey, 113 Ky. 857; 58 L. R. A. 956. 
 
 ' Victorian Ry. Comrs. v. Coultas, 13 App. Cas. 222. 
 
 " Wyman v. Leavitt, 71 Me. 227. 
 
110 ELEMENTS OF THE LAW OF DAMAGES. 
 
 One source of confusion should always be kept in view. In 
 personal injury cases mental suffering is usually said to be al- 
 lowed for as involved in the pain suffered, but this is not the sort 
 of mental suffering around which the discussion of its being a 
 proper element of damage has revolved. Attempts are often 
 made to widen the door in these cases, but they are not tolerated 
 by the courts. 
 
 Illustration. 
 
 A., injured in a railway accident, is entitled to recover for mental 
 suffering or anguish resulting from the physical pain endured ; but 
 he cannot introduce evidence of distress suffered from finding 
 himself unable to work and provide for his child.' 
 
 Conversely, where in some jurisdictions damages for mental 
 suffering are allowed for breach of contract to convey intelli- 
 gence, the recovery is not for the mere disappointment and re- 
 gret caused by defendant's negligence. Disappointment and 
 regret are inferable in the case of any breach of contract or tort.^ 
 
 It is important in cases involving an attempt to recover for the 
 mental or physical consequences of fright to distinguish between 
 remoteness of damage and proximate cause. Sometimes there 
 may be no proper cause of action, and at the same time, were the 
 cause of action existent, the damage would not be so connected 
 with the cause as to justify a recovery. In Braun v. Craven ' 
 the sole ground of suit was negligence consisting of loud, threat- 
 ening behavior on the part of a landlord in collecting his rent. 
 The learned court went at great length into the question whether 
 a condition of St. Vitus's dance originating in fright caused by 
 this behavior was a natural and probable result of such negli- 
 gence, and had no difficulty in showing that it was too remote ; 
 but apart from this there was apparently no cause of action. Had 
 the action been one of assault, proof of threatening behavior pro- 
 ducing alarm might have let in evidence of such consequences. 
 
 Even in jurisdictions which allow no recovery for mere 
 
 ' Maynard v. Oregon R. R. & Navigation Co., 46 Ore. 15; 68 L. R. A. 
 477. 
 
 " Hancock v. W. U. Tel. Co., 137 N. C. 497; 69 L. R. A. 403. 
 » 175 111.401; 42L. R. A. 199. 
 
ELEMENTS OF INJURY. Ill 
 
 fright, physical injury suffered through exertions, made in 
 alarm, to escape the consequences of the defendant's negligence 
 gives rise to a cause of action, in which the mental suffering is 
 an element of damages. Thus a woman seeing a derailed car 
 coming towards her at great speed runs in fright for safety and 
 falls, injuring herself. She may recover for the bodily injury 
 and for the fright as well.* 
 
 It is a general rule that sympathetic mental suffering is not a 
 cause of action, no matter what the relation between the persons 
 affected may be. 
 
 Illustrations. 
 
 (o) Minor children are maliciously prosecuted and arrested. 
 Their parents cannot recover for the mental suffering caused.^ 
 
 (6) A. is libelled by B. A.'s mother cannot recover damages 
 for mental suffering.' 
 
 A good illustration of the line which distinguishes cases in 
 which damages may be recoverable for mental suffering and 
 those in which they cannot is afforded by a recent case in Rhode 
 Island. A manager of a place of amusement makes a rule ex- 
 cluding all persons in uniform. B., a petty naval officer holding 
 a ticket of admission, attempts to enter in uniform, but is refused 
 admittance. He can recover the sum paid for the ticket, but not 
 for humiUation. A ticket of this sort is a revocable license, and 
 does not resemble tickets issued to the public by common 
 carriers. No humiliation is involved in the enforcement of a 
 rule of exclusion which applies to all, and the suit does not at 
 any point resemble those in which a breach of contract directly 
 involves the feelings- — e. gr., cases relating to marriage, sick- 
 ness and health, death, burial, etc.* 
 
 ' Tuttle V. Atlantic City R. R. Co., 66 N. J. L. 327; 64 L. R. A. 582. 
 Cf. Sloanei). Southern Cal. Ry. Co., Ill Cal. 668; 32 L. R. A. 193; Denver 
 & R. G. R. Co. V. RoDer, 100 Fed. 738; 49 L. R. A. 77. 
 
 ' Sperier v. Ott, 116 La. 1087; 7 L. R. A. (n. s.) 518. 
 
 " Bradt v. New Nonpareil Co., 108 la. 449; 45 L. R. A. 681. 
 
 * Buenzle v. Newport Amusement Co. (R. I.), 14 L. R. A. (n. s.) 1242. 
 Cf. Postal Tel. Cable Co. v. Terrell, 124 Ky. 822; 14 L. R. A. (n. s.) 
 927; Thurman v. W. U. Tel. Co. (Ky.), 14 L. R. A. (n. s.) 499. 
 
112 ELKMENTS OF THE LAW OP DAMAGES. 
 
 Even where a statutory right is given to recover for mental 
 anguish, this does not alter the general rule that the law does not 
 undertake to compensate for the ordinary worry and anxiety 
 incident to business matters or for inconvenience and annoyance 
 over the ordinary affairs of life. If the Une between business 
 and matters which may be said to sound in mental suffering is 
 lost sight of, every breach of contract or tort involves mental 
 suffering in some degree, and there is no limit to the number or 
 absurdity of the claims which may be set up.' 
 
 Proximate Cause, and Mental Suffering. 
 
 The hostility of the courts to mental suffering as a cause of ac- 
 tion is natural and justifiable; but it has led to a confusion on 
 the subject of proximate cause which is productive not only of 
 much eccentricity of decision but positive hardship. 
 
 In New York no recovery can be had for a miscarriage result- 
 ing from fright caused by negligence.^ The reasons given are, 
 first, that fright alone cannot be a cause of action, because it 
 would be productive of a flood of litigation, and open a wide 
 field for fictitious claims; second, that the injury does not fall 
 within the rule as to proximate cause. In Pennsylvania, per- 
 manent nervous injury caused by fright will not support an 
 action.' These cases proceed on the theory that there must be 
 some personal injury. The cause of action, being "for mental 
 disturbance," is said to be intangible, untrustworthy, illusory, 
 and speculative. The rule in Pennsylvania is expressly pro- 
 nounced to be settled and no longer open for discussion. The 
 principle seems to be that mere fright caused by a negligent act 
 cannot be made a basis of recovery, because no line can be 
 drawn between real and illusory cases; but as is pointed out 
 by a learned annotator,* it does not follow that there can be 
 
 ■ W. U. Tel. Co. V. Shenep, 83 Ark. 476; 12 L. R. A. (n. s.) 886. 
 Cf. Lyles v. W. U. Tel. Co., 77 S. C. 174; 12 L. R. A. (n. s.) 534. 
 
 ^ Mitchell V. Rochester Ry. Co., 151 N. Y. 107; 34 L. R. A. 781. 
 
 » Ewing V. Pittsburgh, C. & St. L. Ry. Co., 147 Pa. 40; Huston v. Free- 
 mansburg, 212 Pa. 548; 3 L. R. A. (n. s.) 49. 
 
 * 3 L. R. A. (n, s.) uhi supra. 
 
ELEMENTS OP INJURY. 113 
 
 no recovery for the consequences of fright, nor that physical 
 injury resulting from fright caused by negligence is not the 
 proximate result of the negligence. 
 
 In Massachusetts, while there can be no recovery for visible 
 illness resulting from mere fright and mental disturbance caused 
 by defendant's wrong,' still, where the wrong consists of negli- 
 gence producing a slight physical impact, the defendant becomes 
 responsible for accompanying nervous shock and ensuing hyste- 
 ria and paralysis without proof that the shock was caused by 
 the blow.^ 
 
 The opposite view is taken by the South Carolina Supreme 
 Court in Mack v. South Bound Raiboad Co.,' in which it is held 
 that recovery can be had for physical injuries, the result of 
 fright and nervous shock occasioned by negligence. In this case, 
 which contains a full review of the authorities, a boy to escape 
 an approaching train was forced to throw himself down just 
 outside the rail along the ties. The train ran over him at a high 
 rate of speed. For injuries through nervous fright resulting from 
 the shock he was allowed to recover.* 
 
 The true view would seem to have been at length reached in 
 Dulieu V. White ' and Simone v. Rhode Island," that negligence 
 producing fright is not enough; that some material damage 
 must be proved ; that this material damage must be proximately 
 caused by the negligence ; and that fright may be one of the links 
 in the chain of causation. The remoteness of the damage is of 
 course a question of fact. 
 
 This view accords with natural principles as to cause and 
 effect. What confessedly artificial rules like the "physical im- 
 pact" theory in Massachusetts seek to avoid is a flood of illusory 
 and speculative cases ; but the dread of this is founded upon the 
 
 ' Spade V. Lynn & B. R. E. Co., 168 Mass. 286; Smith v. Postal Tel. 
 Cable Co., 174 Mass. 576. 
 
 = Homans v. Boston Elev. Ry. Co., 180 Mass. 456; 57 L. R. A. 291. 
 ' 52S. C. 323; 40 L. R. A. 679. 
 
 * Ace. Gulf, Col. & Santa Fe R. R. Co. v. Hayter, 93 Tex. 239; 47 L. R. A. 
 325. 
 
 » [1901] 2 K. B. 669. 
 
 • 28 R. I. 186; 9 L. R, A. (n. s.) 740. 
 
 8 
 
114 ELEMENTS OF THE LAW OF DAMAGES. 
 
 notion that the fright or nervous shock is the caiise of action, and 
 the injury provable as a consequence. The fact is that in the 
 personal injury cases in which the question generally arises, the 
 cause of action is the negligence coupled Vfiih the material damage, 
 the nervous shock or fright being the link which connects the 
 two. There is no rule of law which excludes negligence or other 
 wrong as a cause of effects producing fright, nor which excludes 
 proof that fright may produce material damage.' 
 
 To sum up the whole matter, it may safely be said that, as a 
 general rule, mental suffering will not of itself constitute a cause 
 of action. The Virginia telegraph statute allows the jury in 
 negligence cases to consider grief and mental anguish "in the 
 determination of the quantum of damages." Notwithstanding 
 this provision, the Virginia Supreme Court on a full review of 
 the authorities has held that it only applies to cases where special 
 damages are recoverable, and that menta,l anguish alone cannot 
 constitute a cause of action. This is on the ground of the great 
 weight of authority on the point at common law and of the in- 
 tolerable flood of litigation to which an opposite conclusion 
 would lead.^ 
 
 On the other hand, mental suffering, itself the product of de- 
 fendant's tort or negUgence, may be relied on as a Unk in the 
 chain to establish the proximate result, — material damage. 
 
 Illustrations. 
 
 (a) Defendant, to play a practical joke on the plaintiff, tells 
 her that her husband has had both legs broken in an accident and 
 wants her to fetch him home. The statement is false. The 
 plaintiff suffers violent nervous shock and falls ill, this illness pro- 
 
 ' Many recoveries in telegraph cases become entirely justified by this 
 theory of the matter. Simmons v. W. U. Tel. Co., .63 S. C. 425; 57 
 L. R. A. 607. It has been hinted that in cases of wilful tort there may 
 not be the objection to a recovery that there is in negligence cases; but in 
 the view given above no such question arises. The wilfulness of the tort 
 does not affect the question of proximate cause. 
 
 ' Connelly v. W. U. Tel. Co., 100 Va. 51; 56 L. R. A. 663. The court 
 (Cardwell, J.) says, that every federal court before which the question 
 has come has taken the same view. 
 
ELEMENTS OP INJURY. 115 
 
 ducing permanent injurious consequences. In the Queen's Bench 
 Division it was held that this was a case for substantial damages ; 
 the natural consequence of defendant's tort was physical harm to 
 the plaintiff.^ 
 
 (6) A. enters the house of B. in the night and terrifies the wife 
 of the latter, who in consequence has nervous prostration and a 
 serious illness. She may maintain an action.^ 
 
 (c) Negligent blasting. Plaintiff's wife is lying on her bed when 
 a piece of rock from a blast, weighing some twenty pounds, 
 crashes through the roof. She is greatly frightenedj and the nervous 
 shock causes a miscarriage from the effects of Which she does not 
 entirely recover. These effects are the pfoximate result of the 
 negligence and entitle the plaintiff to a veralct.' 
 
 • WiUdnson v. Downton, [1897] 2 Q. B. 57. 
 ' Watson V. DUts, 116 la. 249; 57 L. R. A. 659. 
 
 ' Kimberly v. Howland, 143 N. C. 398; 7 L. R. A. (n. s.) 645; Watkins 
 V. Kaolin Mfg. Co., 131 N. C. 536; 60 L. R. A. 617. 
 
CHAPTER IX. 
 
 LIMITATIONS OF INJURY. 
 
 When the measure of damages in a given case is spoken of, 
 what is meant is the rule determining the extent of recovery in 
 the particular class of action under consideration. Compensation 
 is, however, often very much limited by the relation which the 
 parties occupy towards one another, or to the question involved 
 in the suit. Thus the damages flowing from a cause of action 
 may be limited in time. The plaintiff may have a right to recover 
 such damages as have accrued down to the date of his action; 
 for subsequent damages he may be remitted to another action. 
 Or he may be limited by his title ; that is, the interest for which 
 he claims compensation may not be the entire ownership. Again, 
 the damages which he has suffered may be less in reality than 
 they apparently are, through acts of the defendant. These dif- 
 ferent aspects of the matter will be briefly considered. 
 
 I. 
 
 The injury inflicted may terminate with the act which caused 
 it, or it may be of a more lasting character. In an ordinary case 
 of a trespass upon lands, if the trespasser has been ousted, the 
 injury is at an end. In the case of a personal injury, the evil 
 effects may last for life. 
 
 The principle which governs the assessment of damages in 
 these cases is simple. Only a single recovery is allowed for a 
 single injury. If at the date of the writ the injury is complete, 
 no recovery can be had beyond it. If it is of such a character 
 that the effects of the cause of action are not yet exhausted, 
 
LIMITATIONS OF INJURY. 117 
 
 then the damages must cover the whole period during which 
 they will continue.' 
 
 Where damages are assessed once for all, and cover future 
 loss, they are called, in the case of contracts, entire damages ; in 
 tort they are usually spoken of as prospective damages. As a 
 matter of fact all cases in which permanent damage to property 
 is allowed for are cases of prospective damages, because in esti- 
 mating the depreciation of value, effects must be taken into the 
 account which last indefinitely. This is not usually noticed, as 
 the damage shows itself at once in depreciation of market value. 
 
 The question may present itself in tort or contract, and in any 
 species of action. A breach of contract may be entire, in which 
 case the compensation will be entire. It may be a continuing 
 contract; thai is, one of which the obligation continues, though 
 breaches occur. In this case, the fact of a breach does not neces- 
 sarily bring the contract to an end, and the injury sued for is only 
 that which has occurred down to the bringing of the action. It 
 may be severable, in which case new breaches will give rise to 
 new causes of action, and the compensation will be limited to 
 the injury produced by the breach sued upon. A contract may 
 even, though by its terms it is severable, be so affected by the 
 acts of the parties that on a breach the damages will be entire. 
 J. agrees with R. to deliver coal at a certain price in May, June, 
 July, and August, but in June refuses to go on with the con- 
 tract^nd both parties treat it as at an end. Suit is brought 
 in July, and although the period of the contract has not yet run 
 out, entire damages are given for the value of the contract as 
 a whole.^ The question of entirety of damages in contract is 
 one depending, not on any fixed rule, but upon the nature and 
 
 ' It seems a consequence of this principle that the doctrine of res adju- 
 dicata applies to the questions of damage, as it does to every other fact 
 within the issue. The rule of res adjudicaia is that a judgment in one 
 case is a bar to any subsequent suit involving the same cause of action, 
 and that this bar includes not only such issues as were actually contested, 
 but all which are in law considered as having been concluded. In Eng- 
 land it has been held in trespass that a claim for damages which had been 
 capable of recovery in a previous replevin suit is barred, whether actually 
 recovered or not. Gibbs v. Cruikshank, L. R. 8 C. P. 454. 
 
 = Roper V. Johnson, L. R. 8 C. P. 167. 
 
118 ELEMENTS OF THE LAW OF DAMAGES. 
 
 interpretation of the agreement and the acts of the parties 
 under it. 
 
 In such a case as that just cited, the allowance of entire dam- 
 ages would seem in many cases to conflict with the rule of cer- 
 tainty. If the breach occurs and the suit is brought before the 
 termination of the contract, the measure of damages, or value of 
 the contract to the plaintiff, must be dependent on the future 
 course of market prices, which is a matter of speculation. The 
 same difficulty, however, occurs in torts, whenever prospective 
 damages are given. The commonest instance is that of a per- 
 sonal injury case, where, if the injury appears to be permanent, 
 the plaintiff recovers damages covering the period of his natural 
 Ufe. These must, in the nature of things, depend largely on con- 
 jecture, which may frequently be contradicted by the event. The 
 difficulty seems to be one which cannot always be overcome by 
 treating the contract as severable, because it may cover a Jong 
 period of time, and to remit the plaintiff to successive actions 
 would often be less conducive to justice than to estimate the 
 damage once for all as nearly as may be. 
 
 In most cases of tort, the rule of a single recovery for a 
 single cause of action is usually easy of apphcation. In cases, 
 however, where the damage itself gives the action, nice questions 
 often arise. 
 
 Rules. 
 
 21. For a single cause of action aU damages inciderU to it must 
 
 be assessed in a single suit. 
 
 22. For breach of an entire contract, the damages must he as- 
 
 sessed in a single action. 
 
 23. For breach of a continuing contract, damages are recover- 
 
 able only to the date of the writ. 
 
 2A. For every breach of a divisible contract, a separate assess- 
 ment of damages may be had. 
 
 25. In tort, the damages include all 'prospective injury from 
 the cau^e of action which is reasonably certain. 
 
 Illustrations. 
 (a) T., the keeper of an office for procuring crews for vessels, 
 in consideration of B.'s undertaking to provide necessary advances 
 
LIMITATIONS OF INJURY. 119 
 
 and supplies, promises to pay a certain sum of money for each man 
 shipped and to repay advances. The contract is divisible, and 
 every breach will support an action.* 
 
 (6) G. makes a contract to support her husband "when he is 
 sober and well-behaved." The contract is a continuing one, and 
 damages can only be assessed to the date of the writ.^ 
 
 (c) A. contracts to deliver to B. 50,000 pairs of bicycle pedals, 
 delivery to be made and paid for in instalments. After delivering 
 2,608 pairs, A. refuses to go on, and B. sues for breach. He re- 
 covers once for all in this action and cannot maintain new actions 
 for successive breaches as they occur. His alternative is to await 
 the time for full performance and then sue.' 
 
 (d) R. agrees to support P. during life, and afterwards repu- 
 diates the contract so as to entitle the latter to treat it as entirely 
 at an end. The damages must be assessed as of a total breach 
 of an entire contract.' 
 
 (e) A. overflows B.'s land, comprising a half section. Suit is 
 brought by A. and recovery had fo the damage to part of the 
 land. He cannot afterwards recover for injury done to another 
 portion.* 
 
 (f) F. sues for a battery, shows a previous recovery for it of £11, 
 and seeks to recover further, on the ground that afterwards, by 
 reason of the battery, part of his skull came out. The former re- 
 covery is a bar.' 
 
 (g) The action is by the owner of land upon the surface against 
 the lessee of coal seams below, for injury arising from a subsidence. 
 The cause of action is the damage, and not the excavation, which 
 the lessee had the right to make; the plaintiff may recover for 
 every fresh injury.^ 
 
 (h) The action is for personal injury. Recovery may be had 
 
 ' Badger v. Titcomb, 15 Pick. 409. 
 
 ' Fay V. Guynon, 131 Mass. 31. 
 
 ' Pakas V. HolUngshead, 184 N. Y. 211; 3 L. R. A. (n. s.) 1042, diss. 
 
 Cui/LEN, C. J. 
 
 ■* ' Parker v. Russell, 133 Mass. 74. 
 
 » Wichita & W. R. R. Co. v. Beebe, 39 Kan. 465. 
 \ * Fetter v. Beal, 1 Ld. Raym. 339, 692, because the probable conse- 
 quences must be considered to have been taken into account. 
 
 ^ ' Barley Main Colliery Co. v. Mitchell, 11 App. Cas. 127. But not 
 damages for depreciation in market value due to the apprehension of 
 future injury by subsidence. West Leigh Colliery Co., Ld., v. Tunnicliffe, 
 [1908] A. C. 27. 
 
120 ELEMENTS OP THE LAW OF DAMAGES. 
 
 for future pain and suffering, if it is reasonably certain that such 
 damages will necessarily result.' 
 
 (i) The cause of action is a nuisance, a continuing tort (giving 
 rise to a new cause of action froin day to day, and which may be 
 abated, enjoined, or discontinued by the person who has established 
 it) ; damages cannot be recovered after the date of the writ.^ 
 
 (j) The action is by a reversioner for a nuisance, causing dam- 
 age to the reversion. Evidence of the permanent diminution in the 
 salable value of the premises is not admissible.^ 
 
 II. 
 
 Where property or contracts are concerned, the question arises 
 how far the right to recover is limited by the extent of the plain- 
 tiff's title or interest. In contracts the question presents little 
 difficulty, for as a rule, in this class of actions the only person 
 who can sue for a breach is entitled to recover the whole dam- 
 ages, no matter what claims others may have against him grow- 
 ing out of the contract. The right to sue upon the contract may 
 pass from one to another, but it cannot, like ownership, be carved 
 into estates or interests. 
 
 The fundamental principle is that for a single cause of action 
 all damages are to be recovered in one suit; a cause of action 
 cannot be split. A suit against a carrier for non-delivery of and 
 damage to baggage has been settled. A second action for mental 
 suffering caused by the same transaction (conceding such suffer- 
 ing to be an element of damage) cannot be maintained.* In per- 
 sonal injury cases the cause of action is negligence followed by 
 damage; but the damage may affect first, the person, second, 
 the property. Usually the two heads of damage are united in 
 one suit and merged in one recovery, and in some jurisdictions it 
 is held that two suits cannot be permitted. Where the question 
 is res nova, the better opinion would seem to be that there are 
 really in such cases two distinct causes of action, one being neg- 
 
 ' Curtis V. Rochester & S. R. R. Co., 18 N. Y. 534; Strohm v. N. Y., 
 L. E. & W. R. R. Co., 96 N. Y. 305. 
 m' Schlitz Brewing Co. v. Compton, 142 111. 511. 
 " Battishill v. Reed, 18 C. B. 696. 
 ' EUer V. Railroad, 140 N. C. 140; 3 L. R. A. (n. s.) 225. 
 
LIMITATIONS OP INJURY. 121 
 
 ligence producing damage to property; the other, negligence pro- 
 ducing damage to person. This is shown by the fact that the 
 same kind of evidence is not appUcable to both. 
 
 Illustrations. 
 
 (o) Personal injury from crossing accident. Plaintiff is injured, 
 and his horse and wagon and harness damaged. He sues for in- 
 juries suffered in his person and recovers damages. While this ac- 
 tion is pending, he sues to recover damages to his property. Held, 
 that the second action is barred by recovery in the first. ^ 
 
 (b) On substantially the same facts the plaintiff, a cabman, re- 
 covers for damage to his cab and then sues for the injury suffered 
 in ms person. Held, that the action is not barred.^ 
 
 With regard to land, a Ufe interest may be in one person, the 
 reversion in another, an estate for years in a third, who is in pos- 
 session; while there may be a mortgage upon it held by a fourth. 
 All are estates recognized by the law, but differ in extent and 
 character. In case of injury, each one may suffer in a different 
 way, or the whole loss may fall upon one or more, while the others 
 escape all but that nominal injury which the law implies in every 
 case of the infringement of a right of this sort. The rule can only 
 be stated in a very general form : — 
 
 Rule. 
 
 26. When two or more persons have different interests or estates 
 in real property, the damages to which each is entitled 
 are measured by the injury to his own interest. To 
 maintain the action, possession alone is enough. 
 
 Illustrations. 
 
 (a) The owner of land conveys to a trustee for the benefit of 
 his wife and son, but remains in possession. Both he and the 
 
 ' King V. Chicago, M. & St. P. Ry. Co., 80 Minn. 83; 50 L. R. A. 161. 
 ' Brunsden v. Hiunphrey, 14 Q. B. D. 141. 
 
122 ELEMENTS OP THE LAW OP DAMAGES. 
 
 trustee have a right of action for a trespass ; but if he has a mere 
 naked possession he can recover only nominal damages.* 
 
 (b) A lessee for years, at an annual rent, has by the terms of the 
 lease a right to dig half, an acre of brick earth annually. He cove- 
 nants also that he will dig no more, or, that if he does, he will pay 
 an increased rent per half acre. A trespasser takes brick earth to 
 the value of £550. The lessee recovers the full value, the reversioner 
 having, by the terms of the lease, parted with the whole beneficial 
 interest, and the lessee being liable, after satisfaction of judgment, 
 as if he had dug the clay himself.^ 
 
 (c) The injury is caused by flovping lands in the possession of 
 a tenant for years. He is entitled to such damages as will com- 
 pensate him for the loss of the use of the lands and their yearly 
 products, but not for any permanent injury.' 
 
 (d) The tenancy is for life. The tenant's damages are measured 
 by taking the present value of the rents and profits, multiplied by 
 the probable number of years of his Ufe, less the probable amount 
 of taxes, repairs, and insurance, and a rebate of interest.* 
 
 (e) The life-tenant commits waste by selling trees to A. to be 
 severed from the land. The reversioner may recover the damage 
 done to the inheritance.' 
 
 (/) The action is by a remainder-man. The measure of dam- 
 ages is the amount by which the market value of the reversionary 
 estate is diminished.* 
 
 (g) To a suit for causing damages by obstructing the natural 
 drainage of water, defendant demurs on the ground that plaintiff 
 is merely occupant of the lot alleged to have been injured. De- 
 murrer overruled.' 
 
 With regard to personal property, the common law has an 
 entirely different rule, — that possession gives the right to recover 
 full damages against a stranger, the possessor being of course 
 
 ' Salisbury v. Western N. Car. R. R. Co., 98 N. C. 465; ace. Brown v. 
 Bowen, 30 N. Y. 519. ■^ 
 
 * AttersoU v. Stevens, 1 Taunt. 183. 
 
 ' Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308. 
 
 * Greer v. New York, 1 Abb. Pr. (n. s.) 206. 
 " Dorsey v. Moore, 100 N. C. 41. 
 
 » Jordan v. Benwood, 42 W. Va. 312; 36 L. R. A. 519. 
 ' Garland v. Aurin, 103 Tenn. 666; 48 L. R. A. 862. 
 
LIMITATIONS OF INJURY. 123 
 
 responsible to the owner for whatever he recovers above his own 
 interest. 
 
 But this only applies as against strangers. If the dispute is 
 between the owner of the property and one having a limited in- 
 terest, the latter can only recover the value of his interest. Any 
 other rule would be productive of needless litigation. If a pledgee, 
 for instance, were to recover for a trespass by the owner the full 
 value of the property, the owner would immediately have a right 
 of action for the full value, less the value of the special interest. 
 And so, too, the general owner can recover against one having 
 a limited interest, only to the extent of the difference between 
 the two. 
 
 Where the possessor is not answerable over, and has no in- 
 terest in the property, although he may have a right of action, 
 on the question of damages his position is different. He cannot 
 recover more than nominal damages. 
 
 Rules. 
 
 27. Possessicm of personal property always gives a right to 
 
 nominal damages against a stranger. 
 
 28. // the possessor is responsible over to the owner, he is enti- 
 
 tled to fvU damages. 
 
 29. As between the owner and one having a limited interest, 
 
 either recovers to the eident of his own interest. 
 
 Illustrations. 
 
 (a) A chimney-sweep finds an ornament, and carries it to a 
 goldsmith, whose apprentice abstracts the stones. In trover the 
 sweep is entitled to the full value of the ornament.' 
 
 (6) A sheriff unlawfully seizes goods pledged to the plaintiff for 
 a sum less than their value. He may recover the full value.'' 
 
 (c) The owner of a horse delivers it to an auctioneer for sale, 
 with liberty to use it until sold. Through the negligence of a rail- 
 way company the horse, while being driven by the bailee in his 
 
 ' Armory v. Delamirie, 1 Stra. 505. 
 * Lyle V. Barker, 5 Binney, 457. 
 
124 ELEMENTS OF THE LAW OF DAMAGES. 
 
 own carriage, is injured. The auctioneer is not responsible to the 
 owner, and in an action against the railway company can recover 
 for injury to his carriage, but not to the horse.* 
 
 (d) The case is trover for a wagon by the owner, the defendant 
 having a hen on it for $14 as balance of the purchase price. In 
 case of a verdict for the plaintiff, the jury must deduct this sum 
 from the value of the wagon.^ 
 
 (e) A sheriff attaches property owned in common, on process 
 against M., who owns an undivided third. In a suit between the 
 other owners and the sheriff on a replevin bond for damages in- 
 curred by him owing to their having replevied the property from 
 him, his damages are limited to the value of a one-third interest.* 
 
 III. 
 
 It is a fundamental principle of law that a wrongdoer is de- 
 barred from reducing the plaintiff's claim against him by showing 
 that the latter's loss has been lessened through benefit conferred 
 by some third person.* The benefit is either the result of a con- 
 tract made with the third person, based upon a consideration 
 which entitles the party to the full benefit of it, or else it is a 
 gift. The case is the same with a benefit conferred by the de- 
 fendant. Even an offer of reparation is of no avail, unless it is 
 accepted. The wrongful act makes the right to damages abso- 
 lute, except with the assent of the party injured. 
 
 A different case arises when the act which inflicts the damage 
 also confers a benefit. In such a case, it is usually impossible 
 to separate the two, and see what the damage would be if no 
 benefit had been incurred. The total loss inflicted, whatever it 
 may be, for which alone the claim for damages exists, will be so 
 much less on account of the benefit. 
 
 ' Claridge v. So. Staffordshire Tramway Co., [1892] 1 Q. B. 422. 
 
 ' Fowler v. Gilman, 13 Met. 267. 
 
 ' Bartlett v. Kidder, 14 Gray, 449. 
 
 * In the case of breach of a tenant's covenant to repair, where the 
 landlord, through the operation of a new lease, gets the benefit of a 
 covenant the same in all respects but with a third person, this does 
 not affect the damages. 
 
limitations op injury. 125 
 
 Rule. 
 
 30. Damages cannot he reduced by proof of benefits or repara- 
 tion, unless (a) the cav^e of action, in inflicting the in^ 
 jury, also confers a benefit itself actually affecting a 
 reduction, or unless (6) there is acceptance by the person 
 injured, or unless (c) the benefit enuring to the advan^- 
 tage of the person injured by operation of law, or its own 
 nature, reduces his actual loss. 
 
 Illustrations. 
 
 (a) In an action against a sheriff for wrongful seizure of goods, 
 it appears that goods have been destroyed by fire, and that the 
 owner has been paid in full for the loss by an insurance company. 
 This does not affect his right to a verdict for the full value against 
 the sheriff.' 
 
 (6) In an action for personal injury, it appears that the plaintiff 
 has received charitable aid. This cannot affect his recovery.^ 
 
 (c) In an action for personal injury, it appears that the plain- 
 tiff has received from his employer (but as a gratuity) a sum equal 
 to what he might have earned during the period of disabiUty. This 
 does not reduce the damages recoverable.' 
 
 (d) In an action of slander, by a silk manufacturer against a 
 physician, for saying that silk furnished by the former contained 
 arsenic, one of the heads of damage is the value of time spent in 
 determining whether there was arsenic in the silk, etc. The dam- 
 ages cannot be reduced because a company whose employee he is 
 tells him that no deduction shall be made from his salary by reason 
 of lost time.^ 
 
 (e) A city causes M.'s premises to be covered by an embank- 
 ment of earth, destroying a fence. M. removes most of the earth, 
 and uses it for filling and grading other portions of the close. The 
 damages claimed are : 1. The value of the fence, $25. 2. The dam- 
 ages caused to the land while covered by the earth, $40. 3. The 
 
 ^' Perrott v. Shearer, 17 Mich. 48. Cf. Anderson v. Miller, 96 Tenn. 35; 
 31 L. R. A. 604. 
 
 ' Norristown v. Moyer, 67 Pa. St. 355. 
 
 ' Nashville, C. & St. L. Ry. v. Miller, 120 Ga. 453; 67 L. R. A. 87. 
 V * Elmer v. Fessenden, 154 Mass. 427. 
 
126 ELEMENTS OF THE LAW OP DAMAGES. 
 
 expense of removing the earth, $82.50. The defendant shows that 
 the earth, as used by M., enhanced the value of his land more than 
 the cost of the removal of the earth. M. can recover for the first 
 and second items, but not the third.' 
 
 (/) An officer wrongfully attaches goods, and the day after 
 tenders them to the owner, who does not take them. The officer 
 cannot show the unaccepted tender in mitigation.^ 
 
 (g) A. cuts timber unlawfully on the land of B., an infant. A. 
 may show in reduction of damages that he has, with the assent of 
 B.'s guardian, appUed part of the proceeds to the payment of 
 debts against B.'s estate, but not payment made without such 
 assent.' 
 
 (A) Goods taken unlawfully by a trespasser are subsequently 
 appUed by the trespasser, but by legal process, to satisfy the owner's 
 debt. This reduces the owner's claim by the amount so applied.* 
 
 (i) Supervisors of a town are sued for refusing to put a judg- 
 ment on the tax Ust; they may show that subsequently the judg- 
 ment was placed on the Ust, and plaintiff can recover only nominal 
 damages.' 
 
 (j) The action is by one who has been deprived of the possession 
 of real estate, rents, and profits. His claim must be reduced by 
 the improvements, and the expenses necessarily incurred to make 
 it profitable.* 
 
 (k) In mining coal, W., by mistake, mines and carries away 
 some of F.'s coal, which Ues beyond his Une. F. brings trover, 
 and claims to recover the value of the coal after it had been mined. 
 W. is chargeable only with the value in place.' 
 
 (I) In a similar case, the coal is sold by defendant. The jury is 
 charged that the plaintiff's damages are the fair market value of 
 the coal at the time of sale. At the mouth of the shaft the coal was 
 
 -' Mayo V. Springfield, 138 Mass. 70. 
 ' Carpenter v. Dresser, 72 Me. 377. 
 •? Torry v. Black, 58 N. Y. 185. 
 *•* Hopple V. Higbee, 3 Zab. (23 N. J. L.) 342. 
 • Dow V. Humbert, 91 U. S. 294. 
 
 ' Hylton V. Brown, 2 Wash. C. C. 165; Hodgkins ». Price, 141 Mass. 
 162; but even here the principle that one who is injured cannot have 
 benefits thrust upon him to affect his damages applies; for if the defendant 
 knows of the superior title, he loses his improvements, and he can in no 
 case recover a balance against the owner. 
 ' Forsyth v. Wells, 41 Pa. St. 291. 
 
UMITATIONS OF INJURY. 127 
 
 worth $2.10 per ton, and this the jury allows, without deduction 
 for the cost of getting it there. The plaintiff is entitled to a new 
 trial; the jury should have been told to give the value less the ex- 
 pense; or, the value of the coal when it first became a chattel by 
 being severed from the ground in which it lay.' 
 
 (m) The action is to recover possession of lumber, manufactured 
 from logs cut without authority under mistake upon plaintiff's 
 land ; the jury assess the damages at the full value of the lumber. 
 The expenses of manufacture should have been deducted.^ 
 
 (n) In a similar case, the defendant conveys the logs to market 
 and sells them. The measure of damages is either the value in the 
 market less expenses, or the value of the property when first severed, 
 together with any profits in the ordinary market.' 
 
 (o) W. cuts trees on M.'s land, divides them into logs, and con- 
 veys the logs to another spot, where they are of greater value by 
 the amount of the labor involved. The measure of damages is the 
 value of the logs when they first became personal property.* 
 
 ' McLean County Coal Co. v. Long, 81 111. 359. 
 
 ' Single V. Schneider, 24 Wis. 299. 
 
 ' Winchester v. Craig, 33 Mich. 205; the fundamental rule seems to be 
 the value of the property in place. Even if it costs more than this to get 
 it to market, the plaintiflt would be entitled to the value. Ibid. 
 
 * Moody V. Whitney, 38 Me. 174. 
 
CHAPTER X. 
 
 VALUE AND PRICE. 
 
 The elements of injury in a given case being ascertained, it 
 remains to determine how these are to be computed in money. 
 When the sole element of injury is that implied in the right of 
 action itself, there is no difficulty. A trifling sum, the amount 
 being established by custom or statute, is given, and costs go 
 with it. When the elements of injury are strictly non-pecuniary, 
 the amount is in the discretion of the jury, subject to review by 
 the court, if the amount of the verdict seems to it plainly exces- 
 sive or inadequate in the light of the evidence. If the elements 
 are pecuniary, that is, if they are of such a material description 
 that money is the necessary measure to be apphed to them, 
 various questions may arise. These will be found to be mainly 
 questions of value and price. Whenever property is destroyed or 
 injured, the measure of damages involves an inquiry into its value, 
 either its value in the market or for some purpose ; whenever a 
 contract of sale is broken, the contract price is one of the factors 
 to be considered. The reason why the market is usually taken 
 as the measure of value is sometimes said to be that this is what 
 the person entitled to the article would have to pay to replace 
 himself.' On the other hand, it is said that this is what he could 
 have sold it for. Sometimes both reasons are suggested.^ 
 
 The first reason will, no doubt, explain most of the cases, be- 
 cause when a thing is bought, and not delivered, or lost or de- 
 stroyed, if it is replaced by the amount of money which will 
 enable the purchaser or owner to obtain another of the same kind, 
 he is compensated. But it will not apply to cases when there is 
 no market, nor where, if there is a market, there is nothing of 
 
 ' Smith V. Griffith, 3 Hill, 333-337. 
 • Blydenburgh v. Welsh, Bald. 331. 
 
VALUE AND PRICE. 129 
 
 the same kind to be procured in it. The second reason is objec- 
 tionable, because, though the market price is what the article 
 could have been sold for, sale is not necessarily the object of the 
 owner. 
 
 The real reason and the one which harmonizes all the deci- 
 sions is beUeved to be that where through a wrongful act the 
 value of anything is destroyed or diminished, the person injured 
 is entitled immediately to an amount of money representing the 
 valve for all lawfvi purposes; that as one lawful purpose is the 
 enjoyment and use of the article, he is entitled to such a sum as 
 would have bought another similar article in the market; that 
 as another lawful purpose is the sale of the article, he is entitled 
 to such a sum as he could have sold it for in the market. As en- 
 joyment or sale are ordinarily the only possible objects in view, 
 the market is the usual test. It is the best evidence of value. 
 And this test must, in the nature of things, be generally adhered 
 to, for though it is true that the market is merely the evidence of 
 value, and not value itself,' still it is usually the only reliable evi- 
 dence we have, and if we abandon it, we are often lost in specula- 
 tion and conjecture. 
 
 The attempt has been made to show that in some cases the 
 market value is not the true rule, and that there is a sort of in- 
 trinsic value, not dependent upon the market, which ought to be 
 inquired into. In a dissenting opinion in Smith v. Griffith, an 
 action against carriers for loss of goods,^ Co wen, J., insisted 
 that while the rule in an action for goods sold at an agreed price 
 was the price, here the question was how much the goods lost 
 were worth, and that the defendants should have been allowed 
 to prove that the goods had no intrinsic value, and that the 
 market value was fictitious; but the majority of the court fol- 
 lowed the usual rule. And the case seems to illustrate perfectly, 
 both the use of the market value as evidence, and the danger of 
 departing from it when it is accessible. The articles injured 
 were Alpine mulberry-trees, and the defendants proposed to 
 prove that subsequent to the injury, it had been ascertained that 
 
 » Kountz V. Kirkpatrick, 72 Pa. St. 376. 
 " 3 Hill, 333. 
 
 9 
 
130 ELEMENTS OF THE LAW OF DAMAGES. 
 
 such trees were of trifling value as compared with the market 
 price ; that they were purchased to plant as a nursery, from which 
 to sell for production ; that they became of no value in the next 
 year, and would not have paid the expense of cultivation. The 
 majority of the court held the evidence inadmissible because: 
 1, it related to a time subsequent to the injury, while the plain- 
 tiff was entitled to their full value at that time; 2, that the 
 plaintiff's intention to plant for production was irrelevant, as it 
 bound nobody, and the plaintiff might have turned the trees 
 to better account. In other words, the value was what the trees 
 were worth for all lawful purposes, and the best evidence of it 
 was the market value. 
 
 But cases continually occur in which it will not apply, and 
 then other evidence must be resorted to. What this evidence 
 shall be must depend upon the nature of the case, and does not 
 in any way affect the measure of damages, which is always the 
 value of what has been lost. One of the commonest tests of value 
 is the cost of production. 
 
 The rule of value has necessarily no application to cases of 
 infringement of rights purely personal, such as liberty, or se- 
 curity. For these the damages cannot be measured by rule ; but 
 elsewhere it is universally in force. For instance, it applies to all 
 contracts, and in such cases whether we hear only of the "value 
 of the contract" (the general measure of damages), or of the 
 market value of a thing, depends on the nature of the agreement. 
 In case of sales the market value of the thing sold is usually the 
 best test; in other cases it is not. Occasionally a combination of 
 circumstances occurs in which the existence of any value may 
 be doubtful. 
 
 One of the commonest cases of value is the value of the use of 
 a thing, e. g., the rent of a house, the charter of a boat, the interest 
 of money. A recovery of the value of the use generally implies 
 that the title to the property remains in the plaintifP; when the 
 act complained of has destroyed the property, the owner's claim 
 is usually limited to the value, assessed in money at the time of 
 the loss, and any further loss by delayed payment is compensated 
 by interest on this sum. If he were to recover besides the value 
 of the property and the interest, the value of the use also, he 
 
VALUE AND PRICE. 131 
 
 would be twice compensated for the same loss. Where damages 
 are based on value, e. g., value of services, proof must be given 
 of what the value is. The jury is not to be allowed to guess 
 at it. 
 
 Price is not value, but a matter of evidence bearing on value. 
 For example, the amount of money paid on a purchase of per- 
 sonal property is the price of the article, but it may be quite 
 difPerent from the value. Usually, when there are regular mar- 
 ket sales, the market price and market value will correspond; 
 but a price may be asked or obtained which is lower or higher 
 than the value.* In the case of bills and notes, the face is said to 
 be 'prima facie the value, but circumstances may reduce this, e. g., 
 the maker may be insolvent, the paper a forgery, etc. All cir- 
 cumstances tending to invaUdate the security must be consid- 
 ered by the jury. 
 
 Rule. 
 
 31. For loss of property, property rights, or rights resting in 
 contract, the measure of damages is the value of the 
 property or rights. 
 
 Illustbations. 
 
 (o) In an action for non-delivery of oil sold, plaintiff offers to 
 prove that at about the time of the delivery the principal oil-dealers 
 made a combination to create an artificial scarcity and an unnatural 
 price. The offer is rejected. On writ of error, plaintiff is entitled! 
 to a new trial. ^ 
 
 (6) The cause of action is breach of contract for the delivery of 
 coal at G., a point on the Mississippi, where there is no market for 
 the purchase of coal except that of the defendant company, which 
 controls the business. The plaintiff cannot show the prices at all 
 points on the river, but is confined to the nearest available market. 
 The value of the contract which he has lost is measured by the differ- 
 ence between such price and the contract price.' 
 
 ' Kountz V. Kirkpatripk, 72 Pa. St. 376; Gary v. Gruman, 4 Hill, 625. 
 ' Kountz V. Citizens' Oil R. Co., 72 Pa. St. 392; Kountz v. Kirkpatriok, 
 id.. 376. 
 
 » GnmdlWerC^. v. Phillips, 23 Wall. 471. 
 
132 ELEMENTS OF THE LAW OF DAMAGES. 
 
 (c) F. buys champagne at lis. per dozen, and resells it at 24*., 
 but is prevented from delivering by defendants' converting it. 
 Champagne of a similar quality is not procurable in the market. 
 The value of the champagne, for which defendants must answer, 
 is 24*. per dozen.' 
 
 (d) . Goods delivered to a carrier for transportation to N. are lost ; 
 there is no market for such goods there. The value is calculated 
 by adding to cost price and expenses a reasonable profit.^ 
 
 (e) P. is owner of an island in the Mississippi, which is taken 
 by a boom company by authority of law. He is entitled to its 
 value for all purposes for which it is suitable, including its adapta- 
 biUty for the purpose of a boom.^ 
 
 (/) Ouster from part of a farm. The measure of damages is 
 the difference in rental value of the farm with and without such 
 part during the period of ouster.* 
 
 (jr) The action is trover for converting stereotype plates, made 
 for the printing of labels or advertisements in the plaintiffs' names, 
 to be used by them only, and of very trifling value except to them. 
 Evidence of the cost of replacing the plates is admissible.' 
 
 (Ji) The action is for killing a race horse, in transit across the 
 Isthmus of Panama. There is no market price for such a horse on 
 the isthmus. As bearing on the value at the place of loss, the 
 market value at San Francisco, the place of destination, may be 
 shown." 
 
 (i) The action is to recover the value of a portmanteau and 
 contents, consisting of clothing. The plaintiff can recover not 
 merely what the clothing would sell for, but the value of it for use 
 by the owner.' 
 
 The action is for killing a dog which has no market value. 
 Pedigree, characteristics, and qualities having been proved, it is 
 competent to prove by proper witnesses their opinion as to value.' 
 
 • France v. Gaudet, L. R. 6 Q. B. 199. 
 
 = O'Hanlan v. Gt. Western Ry., 6 B. & S. 484. 
 ' Boom Co. V. Patterson, 98 U. S. 403. 
 
 * Erwin v. Nolde, 176 Penn. 594; 35 L. R. A. 415. 
 " Stickney v. Allen, 10 Gray, 352. 
 
 » Harris v. Panama R. R., 58 N. Y. 660. This is not the measure of 
 damages, however, for deduction must be made for risk and expense of 
 transportation. Ihid. 
 
 ' Fairfax v. New York Central & Hudson R. R. R., 73 N. Y. 167. 
 
 » Hodges V. Causey, 77 Miss. 353; 48 L. R. A. 95. 
 
VALUE AND PRICE. 133 
 
 (k) The action is for the loss of a manuscript. The cost of its 
 production may be considered.* 
 
 (I) The action is for the conversion of a schooner lying on the 
 shore, in Massachusetts, at a place where there is no market. Evi- 
 dence of the market value at St. John, Boston, or other ports may 
 be received, as well as of the probable expense of getting her to 
 market, of the diminution in her value through having gone ashore, 
 of the rate of insurance, and perhaps of a fair salvage; but the 
 measure of damages is her value, or what buyers would pay for 
 her, as she lies on the beach, with all the facts known.^ 
 
 (m) The action is to recover the value of an oil-painting, the 
 portrait of the plaintiff's father, for which there is no market value. 
 Evidence of its cost, the practicability and expense of replacing it, 
 and of the fact that the owner has no other, is admissible.' 
 
 (n) The plaintiff is entitled to recover from the defendant dam- 
 ages for the detention of machines furnished by him for trial, and the 
 value of the machines. There is no market value, as to the machines, 
 or their use. He is entitled to the cost of production with interest.* 
 
 (o) E., an architect, desiring to enter into a competition for the 
 construction of a pubUc building, prepares plans and forwards 
 them to the committee by carrier. In consequence of defendants' 
 negUgence, the plans do not arrive in time. The evidence is that 
 the plans were totally unfitted for the purpose, that E. could not 
 have succeeded in the competition. The measure of damages is 
 the value of the loss of the opportunity to compete, and this being 
 nothing, the plaintiff can only recover nominal damages." 
 
 (p) G. sues C. for breach of warranty of soundness on the sale 
 of a horse. The jury is charged that the measure of damages is 
 the difference between the price paid, and the value of the animal 
 with the defects. There must be a new trial. The measure of dam- 
 ages is the difference between the real value, and the value with 
 the defects." 
 
 (q) A picture is exhibited, which is a scandalous Ubel upon a 
 gentleman and his wife. The latter's brother cuts it in pieces. In 
 a suit by the painter against the brother, some of the witnesses esti- 
 
 ' Southern Express Co. v. Owens, 146 Ala. 412; 8 L. R. A. (N. s.) 369. 
 
 2 Glaspy V. Cabot, 135 Mass. 435. 
 
 ' Green v. Boston & Lowell R. R., 128 Mass. 221. 
 
 « Redmond v. American Mfg. Co., 121 N. Y. 415. 
 
 » Adams Express Co. v. Egbert, 36 Pa. St. 360. 
 
 » Cary v. Gruman, 4 Hill, 625. 
 
134 ELEMENTS OF THE LAW OP DAMAGES. 
 
 mate the value at several hundred pounds. The jury can only 
 assess the value of the canvas and paint, as a libel in law has no 
 value, and the exhibition might have been enjoined.' 
 
 (r) A. purchases a machine of B. giving his note in part pay- 
 ment, the note to be returned in case of failure to dehver a machine 
 in accordance with contract. On breach by B., A. demands the 
 return of the note, which is refused, the note having been trans- 
 ferred by B. to an innocent third party for value. Provided evi- 
 dence bearing on the insolvency of the maker is allowed to go to the 
 jury, a verdict for the face value may be sustained.^ 
 
 («) The cause of action is breach of a contract by A. to build 
 and lease to B. a building of such size that no one but B. would be 
 likely to make it serviceable in his business. The measure of 
 damages is the difference between the rent^ stipulated, and the 
 value or rental value (not the market value) of the term. B. is 
 entitled to give evidence pertinent to every element of value.* 
 
 (<) Action for negligent injury. Plaintiff recovers for medical 
 services, but there is no evidence showing the amount of money 
 expended for such services, nor what they were reasonably worth. 
 Judgment reversed and a new trial ordered.* 
 
 (m) For a taking of property for public use a statute allows 
 damages to a physician having a practice established on land 
 within a town. Compensation is not limited to the decrease in 
 market value in the business considered as a salable commodity.^ 
 
 Of Value, the jury is the judge. To appraise is one of the 
 jury's most important functions, and it must not be overlooked 
 that as to the value of services, time, property, or labor the 
 testimony of vdtnesses is to be weighed by them in the light of 
 itheir own experience, knowledge, and judgment. The judg- 
 ment "of a witness is never binding upon a jury as a matter of 
 law;' The fundamental measure is value; market value, if 
 there is a market, is only evidence of this.' 
 
 • Du Bost V. Beresford, 2 Camp. 511. 
 
 = Lyle V. McCormick Harvesting Machine Co., 108 Wis. 81 ; 51 L. R. A. 906. 
 ' Jonas V. Noel, 98 Tenn. 440; 36 L. R. A. 862. 
 
 * Brown v. White, 202 Pa. 297; 58 L. R. A. 321. 
 
 « Earle v. Commonwealth, 180 Mass. 579; 57 L. R. A. 292. 
 ° Head v. Hargrave, 105 U. S. 45; Patterson v. Boston, 20 Pick. 159; 
 Beveridge v. Lewis, 137 Cal. 619; 69 L. R. A. 581. 
 
 ' Griffin V. Roanoke Lumber Co., 140 N. C. 514; 6 L. R. A. (n. s.) 463. 
 
CHAPTER XI. 
 
 INTEREST. 
 
 It is difficult to lay down general rules for the allowance of 
 interest as damages, partly because the law both in England 
 and America has within the last century changed very much, and 
 partly because it is even now different in different jurisdictions. 
 
 In order to understand the course of decision, it is necessary 
 to notice that it is only in very recent times that the subject has 
 been placed upon its true foundations. For a long period the 
 matter was obscured by the prejudice against usury, interest 
 being regarded as a non-natural increment of money. The 
 ordinary common-law action for non-payment of money was 
 assumpsit; that b, it was founded upon the idea of a promise, 
 express or implied. Consequently, it seems to have been thought 
 at one time that when the action was of this nature it was a pro- 
 ceeding for specific performance, i. e., to compel the performance 
 of the promise supposed to have been made by the defendant. 
 Thus Lord Mansfield speaks of the action as "brought to 
 obtain a specific performance," ' and Lord Loughborough ^ 
 goes so far as to say that it is "a technical fiction to call the 
 sum recovered 'damages.'" It followed from this view that 
 the solution of the question of interest involved the question 
 whether the promise, express or implied, covered, in fact or in 
 law, an undertaking to pay interest. In the case of a bill or 
 note, expressly carrying interest, there could be no hesitation; 
 when such an instrument was payable at a fixed time, it was 
 not difficult to hold that interest must be given. But where 
 there was no promise to pay it, express or implied, to sustain 
 an action of assumpsit seemed out of the question. 
 
 ' Robinson v. Bland, 2 Burr. 1077. 
 ' Rudder v. Price, 1 H. Bl. 547, 554. 
 
136 ELEMENTS OF THE LAW OP DAMAGES. 
 
 The common-law rule as early laid down in England restricted 
 interest to mercantile securities payable at a fixed time, to cases 
 of an express promise to pay it, and to cases where the law from 
 the circumstances of the case, from the usage of trade or the 
 parties, etc., implied it.* 
 
 The rule was found too narrow, and by Statute 3 & 4 Will. IV. 
 11, the jury were allowed in their discretion to give interest on 
 debts and sums certain from the time of payment (if payable in 
 writing at a time certain), if otherwise, then from time of demand 
 in writing; also, in cases of trover, trespass de bonis asportatis, 
 and policies of insurance ; and the common-law rule, so enlarged, 
 is the law of England on the subject to-day. In the United States, 
 the development of the law of interest has been mainly effected 
 by judicial decision. 
 
 Traces of the early theory that to recover interest there must 
 be a promise to pay it, may be observed at a much later date. 
 Thus, in 1830, Putnam, J., in delivering the opinion of the court 
 in the case of Dodge v. Perkins,^ an action on an implied assump- 
 sit, there being a mere legal liability to pay, declares that "If the 
 interest is not included in the contract, it cannot be given. If it is 
 included, then it should make up a part of the judgment." But 
 as the principal promise was implied, it is perfectly clear that the 
 subsidiary promise was implied also, and so the opinion pro- 
 ceeds, "whether there has been an implied promise to pay in- 
 terest often depends upon the usages of trade and dealings 
 between the parties and other circumstances, which explain the 
 duty undertaken to be performed." ^ 
 
 Notwithstanding the high authority of the source from which 
 this theory comes, a more searching analysis of the subject has 
 led to its general abandonment, and it is now held that an action 
 for non-payment of money, whether founded upon a promise, 
 express or impUed in law, is an action for the breach of the prom- 
 
 ' Gordon v. Swan, 12 East, 419; Calton v. Bragg, 15 id. 223; Walker v. 
 Constable, 1 B. & P. 306; Carr v. Edwards, 3 Stark. 132; Nichol v. Thomp- 
 son, 1 Camp. 52, n. Except where changed by statute,- the common-law 
 rule is the same to-day. London, C. & D. Ry. Co. v. Southeastern Ry. Co., 
 [1893] A. C. 429, 440. 
 
 ' 9 Pick. 368, 384. » Id. 385. 
 
INTEREST. 137 
 
 ise, that the redress given is not specific performance, but dam- 
 ages; and the interest allowed is further damages for the valvs 
 of the use of the money while detained. Its legal character is 
 therefore closely analogous to that of the rent of land, or the 
 hire of a chattel, considered as damages. 
 
 What has been said with regard to the interest on money de- 
 manded will make clearer the principle which has been making 
 its way in the allowance of interest in all other cases. The prin- 
 ciple is, that wherever a claim for damages exists, no matter 
 what the cause of action, if it represents a loss of a pecuniary 
 value ascertainable with reasonable certainty, as of a definite 
 time, interest should be recoverable from that time. If the claim 
 is unliquidated, and involves non-pecuniary elements, such as 
 pain and suffering, it should not be allowed. In many cases of 
 the first class interest recoverable in one jurisdiction as a matter 
 of law, is in another in the discretion of the jury. 
 
 1. In actions, where the primary injury falls in whole or in 
 part upon rights purely personal, such as assault, assault and 
 battery, personal injury through negUgence, libel, slander, false 
 imprisonment, seduction, and breach of promise, the jury has a 
 right to take into account all the circumstances, and a wide dis- 
 cretion as to amount. It may therefore perfectly well allow for 
 the time which has elapsed since the injury. But interest cannot 
 be given as a matter of law; if the jury were, in addition to their 
 discretionary powers, to be directed to allow interest as a matter 
 of law, the result must often be a double allowance of interest. 
 In such cases as these the damages include suffering, past and 
 prospective.* There are no means of calculating arithmeti- 
 cally the value of probable future suffering. When exemplary 
 damages are allowed, interest in addition would be a manifest 
 absurdity. 
 
 2. In other cases of tort, where rights of property, or money's 
 worth, only are involved, there is every reason why, if a loss is 
 fixed at a definite time, the plaintiff should be allowed, as of 
 right, interest on the money representing it from that time. It is 
 often said that since the amount may not have been ascertainable 
 
 » RaUroad v. Wallace, 91 Tenn. 35. 
 
138 ELEMENTS OP THE LAW OF DAMAGES. 
 
 till verdict, it was not a debt ; the plaintiff could not demand if, 
 and the defendant could not pay it. This is perfectly trae, but 
 wholly irrelevant. The question is, what has the plaintiff lost; 
 and since his loss includes not only the rights destroyed or in- 
 jured, but the value of their use, from the time of the loss, unless 
 he obtains interest as an equivalent he is not remunerated. The 
 essence of the plaintiff's claim is in the loss, not in the fact 
 that the claim takes through the medium of a verdict a pecu- 
 niary form. It may be a more correct use of language to say 
 that the plaintiff recovers damages for the loss of the use, and 
 that interest does not begin to run till after judgment; but 
 since interest is the form which in these cases the loss of the 
 use always takes, the result will be the same, — that the plain- 
 tiff should recover as a matter of right, in addition to the sum 
 of money representing the thing or right which he has lost, a 
 sum equal to the legal interest upon it. 
 
 But this is hot by any means universally the law; the control 
 of the jury still chngs to interest in many jurisdictions where, in 
 determining the measure of damages as to the principal loss, the 
 control of the court has become supreme. And in the same juris- 
 diction interest may be recoverable as a matter of law in trover, 
 while if the action is for negligent injury, the jury decide the 
 question. All that can be said is that it is either recoverable as 
 of right or allowable in the discretion of the jury. 
 
 3. Looking at cases of contract and tort together, two oppos- 
 ing theories run through the decisions, — one, that a demand 
 must be hquidated before interest upon it can be allowed as a 
 matter of law; the other, that when there has been an injury, 
 involving solely pecuniary elements ascertainable by verdict as 
 of a given date, the claim is substituted, in the view of the law, 
 for the rights taken or injured, the property destroyed, the ad- 
 vantage of the contract lost, and when the amount is ascertained 
 by legal decision, the plaintiff is just as much entitled to interest 
 upon it from the time of the injury, as he would have been to 
 the subsisting enjoyment of the advantage, the property, or the 
 rights. 
 
 This second theory, which is in fact the principle just sug- 
 gested as the true one, is superior to the first in the fact that there 
 
INTEREST. 139 
 
 is no real line of division between liquidated and unliquidated 
 demands, (indeed, properly speaking, if a claim for damages is 
 disputed, it cannot be said to be liquidated until a verdict has 
 been rendered) and also that it is in complete harmony with the 
 principles on which the whole law of damages rests. 
 
 This can readily be seen by considering the analogous case 
 where damages are given for the detention of an article, where 
 they are measured by the value of its use. In this case the article 
 is not permanently lost to the owner. He recovers the property. 
 But he has been deprived of its use, and the value of this he 
 recovers. So, if he is kept out of money, the rule is, that he 
 recovers not the identical money in question, but an equivalent 
 sum as damages, with interest as the value of the use. 
 
 It follows from this, that where only pecuniary injury is in- 
 volved and there is a definite time, as an initial point for the 
 allowance of interest, which may be according to circumstances 
 that of action brought, of conversion, demand, adjustment of 
 claim, destruction of property, etc., there is no room for the dis- 
 cretion of a jury. 
 
 If this theory were completely developed, the only question of 
 difficulty presented would be that in some cases the time from 
 which the interest must run would not be easy to determine. In 
 cases where the time is fixed by the contract, or by a demand for 
 payment, or for the return of goods, there could be no question; 
 in the case of a continuing contract, as a warranty, or an agree- 
 ment for support, or a tort with continuing consequences, the 
 determining fact would be the time of the injury. It may be 
 thought that where the damages are prospective, a difficulty 
 would arise, as in the case of prospective suffering above men- 
 tioned. But such is not the case if the injury is pecuniary. For 
 instance, in the case of a contract to support, the measure of 
 damages would be based on the present worth of the support. 
 The present worth of future injury is of course the converse of 
 pecuniary redress for a past injury with interest added. 
 
 The opposing theory appears to rest on the idea that interest 
 should not be allowed unless the claim is of such a nature that 
 the defendant might have settled it by payment without suit, and 
 that he ought to have done so either immediately upon being 
 
140 ELEMENTS OF THE LAW OF DAMAGES. 
 
 sued, or at some previous time, as upon demand. The history 
 of the matter in the New York courts shows a tendency, first, in 
 the direction of one theory, then in that of the other. A review 
 of the history of the cases in that State is given by Earl, J., in 
 the opinion of the Court of Appeals, in White v. Miller.' In New 
 York the allowance of interest was first extended beyond the 
 limits of the common-law rule to actions to recover money wrong- 
 fully detained ; then to actions for the detention, taking, or con- 
 version of property, for goods sold, and for work and labor. 
 Finally, a still further extension took in all actions in which, 
 though the demand was unliquidated, the amount could be as- 
 certained by computation alone, or computation in connection 
 with estabhshed market values. But in White v. Miller,^ the 
 Court of Appeals, in a case where this rule could not be applied, 
 laid down another, and quite different one, that where the claim 
 sounds wholly in damages, is unliquidated, and contested, and 
 the amount is entirely uncertain, interest can be allowed neither 
 from the time of a demand, nor from the date of the action. This 
 case was followed in McMaster v. The State.' Certainly, if a 
 demand will not set interest running, a writ will not, and there 
 are many cases where a demand either for payment, or for a 
 return of property taken, is necessary to the maintenance of an 
 action. But if a right of action exists, and a pecuniary injury 
 has been inflicted, which the verdict measures and ascertains, 
 and if redress is to be commensurate with the injury, the date 
 of the injury — that is, the date at which the law considers the 
 injury to have arisen, whether on demand or independent of 
 it — should be the starting point of the redress. For example, 
 interest is excluded in all cases on the items of an account, 
 where supplies are furnished, if it is not the intention or the 
 usual course of dealing to charge interest. .The domestic 
 supplies furnished by tradesmen on an open credit furnish a 
 common instance. But here the creditor may, by notice or de- 
 mand, fix the debtor with liabiUty for interest, and if he brings 
 suit the date of the writ will fix the time of demand from which 
 interest runs. 
 A question as to interest which has divided the courts is that 
 ' 78 N. Y. 393. » Ubi supra. ' 108 N. Y. 542. 
 
INTEREST. 141 
 
 with reference to overdue paper. When a bill, note, or other 
 security carries interest at a stipulated rate, at what rate is in- 
 terest to be calculated after the paper has become due, and the 
 contract has been broken ? The rate must be either that provided 
 by the contract, or the rate provided for by the statute deter- 
 mining the rate in the absence of contract. Inasmuch as the 
 contract is broken, and the plaintiff can recover only damages, 
 many courts of the highest authority hold that the statutory rate 
 governs. Others, of equal authority, think that the contract rate 
 ought to prevail. The vreight of reasoning seems to be in favor 
 of the statute rate, and it may be suggested that the opposing ar- 
 gument is historically connected with the early theory, already 
 noticed, that the right to interest for breach of a promise to pay 
 money must be rested upon the promise itself. As a matter of 
 fact, the two are now generally regarded as entirely disconnected.' 
 
 The source of the theory which makes the contract rate govern 
 may probably be seen in the Massachusetts decisions. In Dodge 
 V. Perkins,^ in 1830, Putnam, J., says: "If the interest is not 
 included in the contract, it cannot be given." In 1873, the same 
 court, in the case of a note at ten per cent, deciding that this 
 rate prevails after maturity, says: "The plaintiff recovers in- 
 terest, both before and after the note matures, by virtue of the 
 contract." ' 
 
 If the defendant is not chargeable with delay interest will not 
 run against him. The commonest instance is tender of the 
 amount due; if an amount greater than is afterwards found to 
 be due by the jury is tendered, the result is the same.* The 
 same thing is true if any legal impediment intervenes, as in the 
 case of war between the countries which are the domicil of 
 the debtor and creditor, or in the case of trustee process, 
 foreign attachment, or injunction. , 
 
 ' Cf. Cook V. Fowler, L. R. 7 H. L. 27, In re Roberts, 14 Ch. D. 49, 
 Holden v. Trust Co., 100 U. S. 72, Eaton v. Boissonnault, 67 Me. 540, 
 Paine v. Caswell, 68 id. 80, with Cecil v. Hicks, 29 Gratt. 1; Union Inst, 
 for Savings v. Boston, 129 Mass. 82. 
 
 ' 9 Pick. 368, 384. 
 
 ' Brannon v. Hursell, 112 Mass. 63, 71. 
 
 * Thompson v. Boston & Me. R. R. Co., 58 N. H. 524. 
 
142 ELEMENTS OP THE LAW OF DAMAGES. 
 
 Compound interest, or interest on interest, as damages, is not 
 generally allowed. It has been suggested that this rule has its 
 foundation in the fact that where interest is payable at fixed 
 dates a right of action immediately accrues, and if no suit is 
 brought for it, it is more in accordance with the ordinary prac- 
 tice of affairs to hold that the right to it has been waived; but 
 it is more easy to state the rule than to reconcile the reason given 
 with general principles of law. Probably a very ancient custom 
 is the source of the rule. Exceptional circumstances may per- 
 mit the allowance of compound interest, e. g., when the intention 
 of the contract calls for it. 
 
 Rules. 
 
 32. Damages include interest, as of right on all contracts ex- 
 
 pressly 'providing for it, where it is implied from usage, 
 or the dealing of the parties, in all actions for non- 
 payment of money only, and on all liquidated demands. 
 
 33. Interest is not recoverable in cases of tort involving injuries 
 
 norir-pecuniary. 
 
 34. In all other cases of tort, involving pecuniary injury only, 
 
 where the loss is fixed as of a definite date, interest is 
 either (a) a matter of right, or (6) it is allowable in the 
 discretion of the jury. 
 
 35. Whenever the defendant is not legally chargeable with 
 
 delay, interest will not run against him. 
 
 36. Interest is not recoverable on arrears of interest. 
 
 37. Interest on damages is at the rate established by statute. 
 
 38. Interest runs on all judgments. 
 
 Illustrations. 
 
 (a) The yearly rent reserved in a lease is eighteen bushels of 
 wheat, four fat hens, and one day's service with carriage and horses. 
 In an action for breach of covenant to pay rent, interest is recover- 
 able from the time when the rent became due, on the market value 
 of the wheat, hens, and services.' 
 
 ' Van Rensselaer v. Jewett, 2 Comst. 135. 
 
INTEREST. 143 
 
 (6) The action is on a contract of sale for non-delivery of per- 
 sonal property, the measure of damages being the difference be- 
 tween the contract and market price. The vendee is entitled to 
 interest.' 
 
 (c) Under a contract for the construction of a railroad, the pay- 
 ments depend upon estimates, and measurements to be made hy 
 the engineers of the company. The company refuses to have a final 
 measurement made, or measurements already made reviewed. 
 The amount due is not Uquidated, nor capable of being ascertained 
 by calculation merely, nor by reference to market rates; but the 
 defendant is in default for not having taken the requisite steps to 
 ascertain the amount of his debt. Interest is recoverable from the 
 time of the refusal of the company.^ 
 
 (d) The action is to recover damages for breach of warranty in 
 the sale of seed. The measure of damages is the difference between 
 the value of the crop raised, and such a crop as would have been 
 raised, had the seed corresponded with the warranty, and the 
 claim is therefore unliquidated, and so uncertain that a demand 
 would not have set the interest running. Interest is not recoverable.' 
 
 (e) P. has received money belonging to D., and is hable for it 
 without demand. He is also liable for interest.^ 
 
 (/) In an action against a railroad for personal injury W. re- 
 covers a verdict, assessing the damages at $7,000, with seven years' 
 interest, $2,940. Unless he remits the interest, the defendant is 
 entitled to a new trial.^ 
 
 (g) Land is taken by right of eminent domain. The owner is 
 entitled to interest on the value from the time when the owner's 
 right to use the land ceases.* 
 
 I Dana v. Fiedler, 12 N. Y. 40. 
 
 ' McMahon v. N. Y. & Erie R. R. Co., 20 N. Y. 463. 
 
 ' White V. Miller, 78 N. Y. 393. Undoubtedly neither party could 
 know in advance what the precise amount of the claim would turn out to 
 be ; but this does not alter the fact that the plaintiff has lost the expected 
 benefit of his contract, and that unless interest is given the loss increases 
 with every day. If it be objected that the time of such an injury cannot 
 be ascertained, that is an objection to any recovery whatever; a time 
 must be fixed for taking the difference in value. 
 
 * Dodge V. Perkins, 9 Pick. 368. 
 
 " Railroad v. Wallace, 91 Tenn. 35. 
 
 " Old Colony R. R. Co. v. Miller, 125 Mass. 1; South Park Com'rs v. 
 Dunlevy, 91 111. 49. But damages are not allowed for delay in payment 
 
144 ELEMENTS OF THE LAW OF DAMAGES. 
 
 (h) The action is trover for the value of a barge converted by 
 defendants. The jury is directed to allow intejest on this value. 
 The direction is proper.' 
 
 (i) The action is for the value of personal property destroyed 
 by the negligent act of the defendant. Interest is allowable as 
 damages.' 
 
 (j) The cause of action is for destruction of property through 
 negligence. On the trial the judge directs the jury to allow interest 
 as a matter of law. This is error. It should have been left to the 
 jury, in their discretion, to allow damages in the nature of interest, 
 for the lapse of time.^ 
 
 (k) The cause of action is the same. The case is referred to an 
 auditor, who, having the powers of a jury, allows interest. On 
 appeal it is held that the jury has the power to consider the delay 
 caused by the defendant, and that it cannot be better done than 
 by taking interest on the original damage as a measure.* 
 
 (T) A. brings suit against B., on an account annexed for $25. 
 Prior to this a trustee process had been begun by C. against A., 
 making B. the trustee. B., as trustee, having paid S25 on the exe- 
 cution, cannot be charged with interest in A.'s suit against him.^ 
 
 (m) The action is replevin for the loss of a savings-bank book ; 
 the deposit draws interest at three per cent. The rate for purposes 
 of damages is seven, this being the statutory rate in all cases." 
 
 when the delay was caused by the fact that the demand was grossly ex- 
 cessive. Philadelphia Ball Club v. Philadelphia, 192 Pa. 632; 46 L. R. A. 724. 
 
 ' Andrews v. Durant, 18 N. Y. 496. 
 
 ' Parrott v. Knickerbocker Ice Co.,- 46 N. Y. 361. 
 
 ' Richards v. Citizens' Natural Gas Co., 130 Pa. St. 37; Central of 
 Georgia Ry. Co. v. Hall, 124 Ga. 322; 4 L. R. A. (n. s.) 898. 
 
 ' Frazer v. Bigelow Carpet Co., 141 Mass. 125. This necessarily raises 
 the question as to who caused the delay. In the Massachusetts case, the 
 defendants denied their liability, and the plaintiff waited for the decision 
 in another case — a prudent course. But any person injured by another 
 has the period of the Statute of Limitations within which to bring his 
 action, and he cannot be properly chargeable with delay if he brings it 
 within that period. A court of justice could hardly permit an inquiry as 
 to whether the plaintiff might or might not have brought the action earlier. 
 Damages for delay in these cases means indemnity for what the plaintiff 
 has lost by not having the value of the property immediately on its destruc- 
 tion, and this is really interest. 
 
 « Bickford v. Rich, 105 Mass. 340. 
 
 ° Wegner v. Second Ward Savings Bank, 76 Wis. 242. 
 
INTEREST. 145 
 
 (n) The action is on a promise to pay the annual interest of 
 certain notes, in case the makers do not pay. Only simple interest 
 can be recovered.' 
 
 (o) The action is on a coupon for interest, attached to a bond, 
 but detachable therefrom, and intended to have all the qualities 
 of commercial paper. Interest is recoverable from the date of 
 payment.^ 
 
 (p) The action is debt upon a judgment rendered by a justice 
 of the peace. The demand is a liquidated one, and the plaintiff 
 is entitled to interest, as of right.' 
 
 > Henry v. Flagg, 13 Met. 64. 
 
 ' Aurora City v. West, 7 Wall. 82. 
 
 » Mahurin v. Bickford, 6 N. H. 567. 
 
 10 
 
PART II. 
 
 TORT AND CONTRACT. 
 
 CHAPTER XII. 
 
 DAMAGES IN TORT. 
 
 From what has been abeady said it will not be expected that 
 the development of the law in actions of tort can produce many 
 definite rules as to the measure of damages in particular classes 
 of actions. The control or discretion of the jury, the rule that 
 exemplary damages may be given to punish the defendant, the 
 fact that there is no agreement to be interpreted or measured by 
 the court, that in many if not most cases personal and non- 
 pecuniary injuries are to be redressed, arid that evidence is 
 generally admissible in aggravation or mitigation, — all these 
 circumstances contribute to prevent the formation of rules other 
 ,than such as are very general. The cases turn rather upon the 
 relevancy of the evidence offered to the issues presented by the 
 pleadings, and upon the right to recover for heads of damage 
 which vary with every case. 
 
 So far as direct damages are concerned, the name of the action 
 shows very often what the general measure of damages is. 
 ,Thus it is obvious that in slander or libel the plaintiff must be 
 entitled to recover an amount of damages representing the in- 
 jury to his reputation ; in an action to recover the possession of 
 personal property, he must be entitled either to the property, or 
 if that is gone, to its value. But very little would be gained by 
 the formulation of these essential rules, because in any actual 
 case the measure of damages becomes enlarged so as to cover 
 
DAMAGES IN TORT. 147 
 
 all the special circumstances. This is an important distinguish- 
 ing mark between Tort and Contract. In contract, a rule of 
 damages is appealed to, from which the facts of the case vary 
 more or less, but which always serves as a guide. In tort, 
 while there is a general principle, the facts of the case make 
 the rules for it. 
 
 It is true that, with reference to what are heads of damage or 
 matters of aggravation or mitigation in every kind of action, an 
 enormous multitude of ruUngs upon offers of evidence of one 
 kind or another might be collected, but they could only serve, 
 when arranged and classified, to show that the effort of the law 
 in torts is not in the direction of assuming control of the measure 
 of damages, or applying an exact standard, except in one class 
 of cases, — that of torts affecting property or contract rights 
 only, i. e., where the rights affected are purely non-personal, and 
 where in addition to this the act complained of is indifferent as 
 regards motive. 
 
 For it must be noticed that the mere fact that a tort affects 
 property or contract rights is not enough to make the rule of 
 damages a rule of pure law. The case, for instance, is one of 
 trespass upon real property, and the injury the destruction of a 
 fence, at once repaired by the owner. In the absence of all 
 other circumstances the measure of damages may be the cost 
 of repairing the fence. From this rule it might be inferred that 
 in cases of trespass the measure of damages is the cost of repairs. 
 But suppose that the trespass is malicious, accompanied by cir- 
 cumstances of outrage and insult. In some jurisdictions the 
 jury may now give exemplary damages ; elsewhere the plaintiff 
 will recover for injury to his feeUngs, — in both cases the dam- 
 ages are at large, and in the discretion of the jury. And even if 
 the trespass is wholly accidental, while the damages will be 
 measured by the cost of repairs, the allowance of interest on the 
 amount will in many jurisdictions be in the discretion of the 
 jury. But the cost of repairs itself is merely an alternative rule. 
 In another case of trespass the plaintiff may be entitled to re- 
 cover the value of property injured. Except that the compen- 
 sation must be commensurate with the injury, there is no 
 invariable measure of damages in trespass. 
 
148 ELEMENTS OF THE LAW OF DAMAGES. 
 
 Again, the discretion of the jury is always limited by the re- 
 quirement that the verdict must be supported by the evidence. 
 In cases of contract this is often a matter of mere arithmetical 
 calculation, as in the case of the amount of interest on a sum of 
 nioney^for a certain time. In tort, wherever the jury has any 
 discretion as to the amount, the principle is applied in a different 
 way. If there is a wide discrepancy between the evidence and 
 the verdict, if the heads of damage cannot yield a verdict such 
 as has been given, it is said that the verdict must have been 
 the result of ignorance or of some improper motive acting upon 
 the jury, and it is set aside. In those cases where there is no 
 room for any discretion at all, where there are no circumstances 
 of aggravation, where the injury is entirely non-personal, and 
 where interest is treated as a matter of right, a rule of law at 
 once makes its appearance; but, for reasons already stated, it 
 will cease to be of binding force in a case otherwise precisely 
 similar, but marked by circumstances of aggravation, personal 
 wrong, etc. This is the method by which the court tests the 
 exercise by the jury of its discretion, and measures a verdict to 
 which exception is taken as being too large. In the opposite 
 case of a verdict excepted to as inadequate, the method is pre- 
 cisely the same. It is that it must be clear that the jury have 
 considered and taken into the account all the heads of damage 
 in respect of which the plaintiff is entitled to compfensation. 
 Otherwise it is held that the jury have not taken a reasonable 
 view of the case.' 
 
 The control of the court over the discretion of the jury is 
 sometimes shown in another way; it cannot, merely because 
 the damages are at large, leave the whole matter to the jury; it 
 miist instruct them as to the proper measure of damages. An 
 action is brought against a railroad company for wrongful re- 
 fusal of admission to a train. The jury is told that plaintiff is 
 entitled to such damages as will under all the circumstances com- 
 pensate him. The verdict cannot stand. "The court must decide 
 and instruct the jury in respect to what elements, and within what 
 limits, damages may be estimated in the particular action." ^ 
 
 • Phillips V. S. W. Ry. Co., 4 Q. B. D. 406. 
 
 " B. & 0, R. R. Co. V. Carr, 71 Md. 135; Knight v. Egerton, 7 Ex. 407. 
 
DAMAGES IN TORT. 149 
 
 Courts are more and more averse to laying down the measure 
 of damages in particular cases in the form of an invariable rule, 
 even when precedent warrants it. There is no better illustration 
 of this than the action of trover, the great modern action for the 
 conversion of and trial of title to personal property. It has been 
 laid down in innumerable cases that the measure of damages is 
 the value of the property at the time of the conversion with in- 
 terest, and it is beyond all doubt that for the misappropriation, 
 of a definite chattel at a definite time, this is and always has been 
 a rule of law. But whenever the occasion requires it, judges 
 insist upon its not being an invariable rule. In one case,^ it 
 is pointed out that the time of the conversion may not be well 
 defined; in another,^ that "the rule of damages should not 
 depend upon the form of its action; " in a third, it is decided 
 that there is "no fixed, definite measure of damages applicable 
 in all cases of conversion of property." ' 
 
 The right of the parties to give evidence of facts in mitigation 
 or aggravation is closely connected with the common-law system^ 
 of pleading. Almost all actions for the redress of injuries to the 
 person or property are derived from a common source, the action 
 of trespass, and in the primitive times in which this action was 
 introduced civil and criminal procedure were not yet discrimi- 
 nated; mitigation and aggravation are themselves terms which 
 show the early implication of the notion of guilt with that of 
 tort. It is very natural, therefore, that the earliest general defence 
 to the charge of tort of any kind should have been that now 
 primarily associated in our minds with criminal procedure, — 
 "not guilty," and such has always been what is called the 
 "general issue " (supplanted in many modern systems of re- 
 formed procedure by the "general denial "), in primitive actions 
 of tort. Owing to its comprehensive character, this plea puts 
 in issue everything necessary to be shown by the plaintiff to 
 make out his case,^ and consequently enables the defendant to 
 contest every separate head of damage introduced to make up 
 
 ' Kent, J., in Cortelyou v. Lansing, 2 Cai. Cas. in Error, 200, 216. 
 " Baker v. Drake, 53 N. Y. 211, 220. 
 » Winchester v. Craig, 33 Mich. 205, 208. 
 * Osbom V. Lovell, 36 Mich. 245. 
 
150 ELEMENTS OP THE LAW OF DAMAGES. 
 
 the total amount. In fact everything which is proper for the 
 consideration of the jury in mitigation may be given in evidence 
 under the general issue/ and the facts which bear on the dam- 
 ages in actions of this sort are infinite in number and variety. 
 Nevertheless in certain classes of injuries, such as libel and seduc- 
 tion, particular classes of facts will always tend to mitigate the 
 damages, and these will be admissible as a matter of law; in 
 others, the question may be one of fact. 
 
 Facts in mitigation may have a bearing on exemplary dam- 
 ages although they may not diminish the damages recoverable 
 by way of compensation. A passenger is wrongfully ejected 
 from a street car by a conductor. If he only seeks to recover 
 compensation for the injury done him and does not ask for 
 exemplary damages, provocation given by the use by the pas- 
 senger of insulting words should not affect the result.^ 
 
 Aggravation is a wholly different matter. In torts which are 
 historically trespasses, i. e., which involve the conception of a 
 direct invasion of personal and property rights, it is a general 
 rule, and one obviously necessary, that the whole wrong and its 
 attendant injuries should be disposed of in one proceeding, even 
 though it might conceivably be split up into different causes of 
 action. Thus in libel, repetition of the words charged may be 
 shown, and in seduction, the fact that the wrong was accom- 
 plished under promise of marriage. Such are said to be cir- 
 cumstances of aggravation, and will either warrant exemplary 
 damages, or damages for mental suffering. But such circum- 
 stances, not being involved in the charge, must obviously be 
 specially alleged. Having been alleged, the defendant may as 
 to these also introduce evidence in mitigation. 
 
 It is a principle of the common law that for a joint tort, or 
 tort committed conjointly by two or more persons, the liability, 
 is both joint and several; i. e., that the whole amount of the 
 damages may be recovered from any one or more of the wrong- 
 doers; and also that if the damages are recovered from any 
 one, he cannot apportion them and recover back what he has 
 
 ' Delevan v. Bates, 1 Mich. 97. 
 
 ' Mahoning Valley Ry. Co. v. De Pascale, 70 Oh. St. 179; 65 L. R. A. 
 860. 
 
DAMAGES IN TORT. 151 
 
 paid over and above his share, from the others. Of these rules 
 the second is usually expressed in the formula that there can 
 be no contribution between wrongdoers. It has, however, been 
 much trenched upon by modern decisions. So many exceptions 
 have in fact been engrafted upon it, that it is practically con- 
 fined to cases of active participation in acts or omissions recog- 
 nized by the wrongdoers as torts.' These Umitations, however, 
 do not affect the first principle, under which a plaintiff always 
 recovers his whole damages in one action, and for this purpose 
 may join all the defendants, or select such as he wishes to hold 
 responsible. The question of contribution arises after the ver- 
 dict for damages.^ 
 
 But where tortfeasors act independently, though both con- 
 tribute to a common injury, one cannot be held liable for the 
 other's act; the consequences of one's tort may aggravate the 
 consequence of the other's, but the Uability of either is only for 
 the consequences of his own tort. 
 
 Illustrations. 
 
 (a) A. and B. acting independently discharge surface water 
 from their respective premises into an underground sewer causing 
 damage to the walls of C.'s building. Each is liable for that part of 
 the damage caused by his own act.* 
 
 (b) A drove of cattle, owned severally by A. and others, trespass 
 on lands of B. In a suit against A. he is liable for such part of 
 
 ' Menyweather v. Nixan, 8 T. R. 186; Nickerson v. Wheeler, 118 Mass. 
 395; Palmer v. Wick & Pulteneytown S. S. Co., [1894] A. C. 318; Union 
 Stock Yards Co. v. Chicago, B. & Q. R. R, Co., 196 U. S. 217. See the cases 
 collected and reviewed, 1 N. Y. Law Review, 115. 
 
 " Compare the analogous case in equity of a breach of trust by co- 
 trustees. Here, if all are responsible, they are all entitled to contribution 
 among themselves, no matter what their various degrees of wrongdoing 
 may be. They must also be all joined, and made parties to the suit. It 
 is a result of this difference between the two systems that the injured party 
 in such cases has often more complete and speedy redress at law than by 
 means of an equity suit, as he is entitled to treat the breach of trust as a 
 tort, and recover in solido from any trustee he may select. 
 
 ' Bonte V. Postell, 109 Ky. 64; 61 L. R, A. 187. 
 
152 ELEMENTS OP THE LAW OF DAMAGES. 
 
 the whole damages as the proportion borne by the number of cattle 
 owned by him has to the whole number of cattle.* 
 
 As the terms "special damage " and "special damages " are 
 continually met with in actions of tort, it should be understood 
 that they are not equivalent. Every complaint concludes with 
 a demand for a sum of money as damages, and this is made 
 sufficiently large to cover all the heads of damages which the 
 plaintiff expects to be able to prove. Under a general demand, 
 however, he can prove only such items as are logically involved 
 in the statement of his case as naturally proximate. Special 
 damages are any damages specially demanded in a complaint 
 because they are not of that kind which, being logically imported 
 by the complaint as necessary or natural consequences, the 
 jury will have a right to award under a general claim of dam- 
 ages. For instance, all consequential damages in contract 
 claimed under a special notice bringing the case within the rule 
 of ^' the contemplation of the parties," are special damages. 
 Special damage, also called special or particular injury, is, 
 properly speaking, the kind of injury which gives a right of 
 action otherwise non-existent. In slander, many spoken words 
 are not in themselves actionable; they do not in law import 
 injury. But if the plaintiff shows that they have caused him a 
 special injury, he may maintain an action. A common nuisance 
 gives no right of action to an individual ; but if one affected by 
 it shows special damage to himself, this gives him a right of 
 action. In an action for assault and battery, the plaintiff offers 
 evidence that, as a result, a tear passage has been closed, and 
 his eyesight impaired. This is a " necessary and natural " con- 
 sequence, and can be recovered without being pleaded as special 
 damages.^ In an action for a nuisance, as just stated, if no 
 special damage is set up, the plaintiff has no action. But the 
 case may arise, and indeed is by no means uncommon, where 
 a contract has been made not to establish a nuisance in the 
 vicinity of premises. On breach the person entitled to the ben- 
 efit of this contract sues. He must recover nominal damages, 
 
 ' Wood V. Snider, 187 N. Y. 28; 12 L. R. A. (n. s.) 912. 
 • Blake v. Lord, 16 Gray, 387. 
 
DAMAGES IN TORT. 153 
 
 for the breach is itself actionable, but he cannot recover sub- 
 stantial damages unless he shows specially how it has damaged 
 him; for the breach of the contract logically involves nothing 
 but the mere fact of a nuisance, which does not of itself import 
 particular injury to the plaintiff any more than any one else.' 
 In the first case neither special damage nor special damages are 
 involved; in the second both are involved. Confusion would 
 be avoided if the term "special damages" were restricted to 
 cases involving solely a question of pleading; and the sort of 
 damage necessary to support certain kinds of action were always 
 called special or particular injury, or particular damage. 
 
 A brief review of some of the more common decisions in ac- 
 tions of tort will perhaps make what has been said clearer. It 
 must be noticed that actions for torts affecting the domestic rela- 
 tions (master and servant, parent and child, husband and wife), 
 being founded upon the infringement of rights neither properly 
 of property nor contract, form a class apart; and it has been 
 thought besfc in this peculiar case to state the law in the form of 
 separate rules. It will be found that the extent of recovery often 
 depends not only on the nature of the injury, but on that of the 
 form of action itself, and that to understand the effect of the lat- 
 ter, it is necessary from time to time to recur to the historical 
 origin of these forms, some of which are extremely ancient. Be- 
 ginning with the simplest and most primitive forms of injury, 
 and a system of redress unprovided with any legal measure of 
 recovery, and in a state of society from which our conceptions of 
 contract and even property seem to have been in a great measure 
 absent, the outlines of the process may be traced by which our 
 method of legal valuation and measurement of rights and the 
 infringements of them, has slowly but surely disentangled itself 
 from, and in part supplanted, the arbitrary power of the early 
 jury. The following general rules, of which sonle illustrations 
 will be given from time to time under the various actions, are 
 brought together here, as probably embodying as nearly as may 
 be the principles upon which courts of justice in cases of tort 
 act. From these principles, if they have been accurately stated, 
 
 ' Bogert V. Burkhalter, 2 Barb. 525. 
 
154 ELEMENTS OF THE LAW OF DAMAGES. 
 
 spring the whole body of minor ruUngs upon offers of proof, or 
 heads of damage, which make up the decisions upon this branch 
 of the subject. The allowance of exemplary damages has been 
 elsewhere discussed ; the principles of compensation in tort are 
 best seen in jurisdictions which do not allow damages by way 
 of punishment. In the appendix is given a case from the Year 
 Books which illustrates the early confusion of criminal proced- 
 ure with that in tort, as well as the function of the primitive 
 jury with regard to damages. 
 
 Rules. 
 
 39. In all cases of tort, involving injury to rights of property 
 
 or contract only, and where the act complained of is 
 wholly indifferent as regards motive, the measure of 
 damages is the value of the property or rights destroyed 
 or injuriously affected at the time of the injury. 
 
 40. In all cases, so far as the effects of the injury upon rights of 
 
 property or contract can be separately estimated, the ex- 
 tent of recovery is a matter of law. 
 
 41. In all cases involving other elements of injury, the amouni 
 
 of the verdict is in the discretimi of the jury. 
 
 42. Circumstances of aggravation are admissible to enhance 
 
 and circumstances of mitigation to reduce the verdict. 
 
 43. Whenever upon an examination of the verdict in the light 
 
 of the evidence, the amount awarded appears to be either 
 so great or so small as to show that it must have been the 
 result of passion, prejudice, ignorance, or mistake, the 
 plaintiff is entitled to a new trial. 
 
 44. Such a case occurs whenever the verdict clearly falls short 
 
 of, or is clearly in excess of an amount which all the 
 heads of damage taken together show to be reasonably 
 recoverable. 
 
CHAPTER XIII. 
 
 Every species of action in use at the present day has its origin 
 in some common-law writ, designed, not only to bring the de- 
 fendant into court, but to inform him of the general nature of the 
 cause of action. For every question of common occurrence, a 
 separate writ and form of action existed. Thus, for the trial of 
 any real property right or title, there was a special writ deriving 
 its name from the nature of the question involved ; and so, for 
 the recovery of a sum of money, debt lay; for breach of an 
 agreement under seal, covenant; for the recovery of chattels, 
 detinue, and replevin. 
 
 In the case of most modern actions for injuries to the person 
 or property, their historical source is the writ of Trespass. This 
 writ, at first confined. to cases of violent injury, or injuries done 
 by "force and arms," " of which assault and battery is a common 
 instance, was by a simple extension of the idea made to cover all 
 direct injuries to the person,^ or to tangible property in the pos- 
 session of the person wronged, as in the ordinary case of trespass 
 upon lands, and trespass for carrying off goods and chattels. 
 But as new remedies were from time to time needed, a method 
 was devised under the authority of Parliament,* by which, in 
 cases containing circumstances different from but analogous to 
 those covered by any existing writ, a new writ was made "on 
 
 • This chapter deals with injuries to the person, individually, and as 
 a member of a family; not with what are called in our law personal ac- 
 tions. Such injuries may be mental, moral, or physical; they affect per- 
 sonal rights, or grow out of the domestic relations. 
 
 ' 2 Finlason's Reeves, 508; Stephen on Pleading, ch. i. ; Y. B. 12 
 H. IV. 3, pi. 4. 
 
 ' Scott V. Shepherd, 2 Wm. Bl. 892. 
 
 * Stat. Westminster 2, 13 Ed. I. c. 24. 
 
156 ELEMENTS OP THE LAW OF DAMAGES. 
 
 the case." A new action was still a kind of trespass; the diffeiv 
 ence was that the old trespass remained a rigid form adapted to 
 cover only the injuries just mentioned ; while trespass " on the 
 case," being elastic, was gradually employed, not only to cover 
 any new cases actually resembling those coming under the head 
 of trespass, but almost every imaginable form of injury to person 
 or property. Almost every common-law action of tort at the 
 present day must be either an action of trespass on the case or 
 some form of trespass. Thus in the action of trover, a species of 
 action on the case has been developed, adapted to try disputed 
 questions of property in goods and chattels. So, libel, slander, 
 and maUcious prosecution have gradually come to be ranked as 
 themselves separate forms of action, but in reality they are all 
 merely different kinds of actions on the case.* 
 
 Assault. — So far as the measure of damages in a;ctions in- 
 volving injuries to the person, or personal rights, is concerned, 
 the simplest case would seem to be presented by the action of 
 trespass for an assault. An assault consists of overt acts rea- 
 sonably producing the impression that violence against the person 
 is about to be attempted.^ Actual contact is not necessary; con- 
 sequently in all such cases nominal damages must be recoverable. 
 As the chief injury in case there is no contact is either fear of 
 
 ' The fact that Parliament had to be resorted to for authority to in- 
 troduce the action on the case is often cited as a striking instance of primi- 
 tive attachment to form. But, except for the power derived from this 
 statute, what authority exists, even at the present day, outside the leg- 
 islature, to give new rights of action? No court claims the right to devise 
 new actions, as occasion may arise; in our present system the power is 
 essentially legislative. The mode by which the action of the case was 
 introduced seems to be in complete accord with the principles on which 
 the later development of our law rests. There was a period when the 
 king or chancellor issued new writs, as occasion required, but this process 
 seems to have ceased by the time of Edward I. See 2 Pol. & Maitl., 
 ch. ix. 
 
 ' Clark V. Downing, 66 Vt. 259; I. de S. v. W. de S., Y. B. Lib. Ass. 
 f. 99, pi. 60. 
 
PERSON AND FAMILY. 157 
 
 bodily harm/ or, in the case of indecent assault/ wounded feel- 
 ings, shame, and humiliation in addition, it would seem an inevi- 
 table result that in this form of action compensation for mental 
 suffering can be recovered without any physical injury whatever. 
 No case seems yet to have arisen involving a discussion of the 
 measure of damages. It may be thought that this class of cases 
 throws doubt on the suggestion made elsewhere,' that in order 
 to recover for mental suffering a right of action independent of 
 the mental suffering itself must exist. But it is believed that, 
 closely examined, the right of action in assault is independent. A 
 cause of action for assault is made out not by a statement that 
 mental suffering has been caused the plaintiff through the acts 
 and words of a person at a distance. As already remarked, no 
 such right of action exists. It is made out by a statement of acts 
 reasonably calculated to produce the impression that violence 
 will be attempted. This would naturally produce fear, and fear 
 would naturally be an element of damage ; but this is very differ- 
 ent from saying that A. can recover against B. because B. fright- 
 ened him. 
 
 Peksonal Injury. — The additional circumstance of bodily 
 violence makes the action one for assault and battery, and in this 
 case, as also that of every other action for personal injury (e. g., 
 the common action against a railway for injuries caused by negli- 
 gence), the heads of damage embrace whatever can be included 
 under "bodily injury." This class of actions is peculiar in there 
 being what resembles a pretty well-defined general rule of dam- 
 ages. It has been already stated that in every class of action in 
 tort there is involved a natural or normal rule of damages. 
 Here it is the amount of personal injury caused, measured in 
 money. But when an injury to the body is concerned (there 
 being no question of the moral character of the defendant's 
 act), it is obvious that this will naturally involve (1) pain; (2) 
 mental distress involved in pain ; (3) expenses of cure ; (4) time 
 lost. If the injury has permanent effects, there will be a fifth 
 head of damage, — the permanent diminution in value of the 
 
 » Beach v. Hancock, 7 Foster, 223. 
 " Alexander v. Blodgett, 44 Vt. 476. 
 » See Chap. VIII. 
 
158 ELEMENTS OF THE LAW OP DAMAGES. 
 
 physical, mental, and moral faculties, of which the only possible 
 pecuniary measure is the permanent diminution of earning ca- 
 pacity. By putting these heads of damage together a so-called 
 rule of damages in personal injury cases is made out, and has 
 been laid down in a multitude of cases. For reasons abeady 
 given, it is not here thrown into the form of a separate rule; 
 and indeed perhaps this is as good an illustration as any that 
 could be given of the unfixed character of the measure gf 
 damages in the various actions of tort. If the heads of damage 
 be put together, the supposed Rule will appear as follows : — 
 
 In actions for personal injury the measure of damages includes 
 compensation for pain and mental suffering, expenses of nursing 
 and medical attendance, time lost, and if the injury has lasting 
 effects, permanent diminution of earning capacity.^ 
 
 This has all the appearance of a rule of law, like that in Had- 
 ley V. Baxendale; but it is in reality somewhat different. First, 
 suppose the injury is not permanent, obviously the last clause 
 disappears altogether; second, there may be no time lost; third, 
 there may be no expenses of cure ; fourth, mental suffering may 
 be wholly absent; and fifth, there may be no pain; in which 
 case the plaintiff will find that the rule has nearly disappeared. 
 If, however, there is any proof of actual physical injury, he 
 can still recover damages. It seems much preferable in such 
 cases as this to speak of heads of damage or recovery, than of 
 any fixed rule, the real fixed rule being obviously of a very 
 unilluminating and abstract character. 
 
 The last head above given is prospective, and depends not only 
 on the probable duration of the injury, but upon probable dura- 
 tion of life, i. e., the particular life affected. To arrive at this it is 
 necessary to resort to the life and annuity tables used by insurance 
 companies, giving the "expectation of life" at any age; but as 
 these only show the probable average duration of the lives of a 
 very large number of persons they are not absolute guides for the 
 
 ' Serious personal injury imports pain and suffering, and to sustain a 
 substantial verdict they need not be proved. Pratt v. Davis, 224 111. 300; 
 7 L. R. A. (n. s.) 609. 
 
PERSON AND PAMILT. 159 
 
 jury, which must take in consideration all the contingencies of 
 the individual case.' Where actual malice is added to the wrong, 
 circumstances of aggravation are introduced, which will enhance 
 the damages ; while on the other hand circumstances of mitiga- 
 tion may in any case lessen them ; but mitigation cannot dimin- 
 ish the damages to be awarded for the injury itself, so far as a 
 pecuniary standard can be applied. 
 
 Rules 41-44. 
 
 Illustrations.' 
 
 (a) Plaintiff is a man of middle age making an income of £5,000 
 a year. The effect of the injury is irreparable, he has endured 
 great pain and suffering, and he will probably never recover. He 
 has already incurred expenses amounting to £1,000, and lost his 
 income for sixteen months, while he will be subject to further ex- 
 pense for a long time. A verdict for £7,000 must be set aside as in- 
 adequate, because the positive pecuniary loss already sustained 
 nearly amounts to this, leaving nothing for health permanently 
 destroyed and income permanently lost.' 
 
 (b) Plaintiff is an insurance solicitor whose earnings are con- 
 tingent upon his vmting insurance risks. Evidence of his average 
 earnings is admissible.* 
 
 (c) In an action for personal injuries, a verdict is rendered 
 giving plaintiff compensation for loss of tinie, and loss of capacity 
 to labor, and also for money paid to another to supply the loss of 
 labor. The verdict cannot be sustained ; it is double compensation 
 for the same element of damage, i. e., the loss of capacity to labor.* 
 
 (d) An accident occasions deformity. The jury may take into 
 account the permanent annoyance caused by it.® 
 
 ' Vicksburg & M. R. R. Co. v. Putnam, 118 U. S. 545. 
 '" In this division of the subject, to avoid repetition, the rules are re- 
 ferred to by number. 
 
 ' Phillips V. Southwestern Ry. Co., 4 Q. B. D. 406. Cf. Robinson v. 
 Waupaca, 77 Wis. 644. 
 
 * Gregory v. Slaughter, 124 Ky. 345; 8 L. R. A. (n. s.) 1228. 
 
 " Blackman v. Gardner, etc. Bridge, 75 Me. 214. 
 
 ' Power V. Harlow, 57 Mich. 107. So of mental suffering, anxiety, 
 suspense, and fright. Sherwood v. Chicago & W. M. Ry. Co., 82 id. 374. 
 
160 ELEMENTS OP THE LAW OF DAMAGES. 
 
 (e) In a case in which exemplary damages are not permissible, 
 the judge charges that plaintiff is entitled to recover for "bodily 
 pain and suffering." This is not a ground of exception.' 
 
 (/) The trial judge charges the jury that they may consider the 
 bodily pain and suffering which plaintiff "has suffered or is likely 
 to suffer," provided that it is "reasonably certain" that such dam- 
 ages will "inevitably and necessarily" result. This is not open to 
 exception.^ 
 
 ig) The action is for personal injury, occasioned by negligence. 
 The trial court allows the jury, in its discretion, to give interest, 
 and the verdict assesses the damages at $7,000, with seven years' 
 interest, $2,940, aggregating $9,940. Exemplary damages are not 
 demanded. The verdict for the larger amount cannot stand. The 
 only heads of damage recoverable are mental and physical pain; 
 loss of time, expenses, and any permanent disability in health, 
 mind, or body. The amount allowed for interest must be remitted, 
 or a new trial had.' 
 
 {h) The action is for assault and battery. The insult and in- 
 dignity inflicted by giving a blow with anger, rudeness, or insolence 
 aggravates the tort.* 
 
 (i) In an action against a railway company, the plaintiff ob- 
 tains a verdict for $25,000. It is excepted to as excessive; and on 
 a review of all the evidence, including appeal by counsel to the 
 jury to give a large verdict on the ground 'that the company is 
 "able to pay," the court holds the verdict too large; the plaintiff 
 must remit $5,000 or take a new trial.' 
 
 (j) The case is one of aggravated assault by a brakeman, in the 
 employment of a railroad company, authorizing exemplary damages. 
 The verdict is for $4,000. The court, while daclaring the verdict 
 "large," refuses to set it aside as not being "clearly excessive." ' 
 
 (Jc) Expenses for nursing may be recovered, though the services 
 are performed by a son ; that his employer in a store continues his 
 pay there does not affect the matter.' 
 
 ' Ransom v. N. Y. & Erie R. R. Co., 15 N. Y. 415; cux. Pa. R. R. Co. 
 V. Allen, 53 Pa. St. 276. 
 
 " Curtis V. Rochester & S. R. R. Co., 13 N. Y. 534. 
 
 " Louisville & N. R. R. Co. v. Wallace, 91 Tenn. 35. 
 
 * Smith V. Holcomb, 99 Mass. 552. 
 
 ' Waterman v. Chicago & A. R. R. Co., 82 Wis. 613. 
 
 " Hanson v. European & N. A. R. R. Co., 62 Me. 84. 
 
 ' Lewark v. Parkinson, 73 Kan. 553; 5 L. R. A. (n. s.) 1069. 
 
PEKSON AND FAMILY. l6l 
 
 Libel and Slander. — An action for libel may be main- 
 tained in the case of any publication written, printed, or pictorial 
 tending to bring the person to whom it refers into hatred, ridicule, 
 or contempt. The gist of the action is said to be malice, but the 
 word is used in two different senses, which it is necessary to dis- 
 tinguish. The malice requisite to sustain the action means 
 simply that implied by the law from the facts which give the right 
 of action. It may also mean what it means in ordinary language, 
 'i.e., evil motive, wanton disregard of the rights of others, a desire 
 to injure, etc' When it is said that the gist of the action is malice, 
 malice of the first sort is meant, and to show this mere proof of 
 the publication {i. e., communication to a third person) of the 
 defamatory matter is enough. This sort of malice is also called 
 malice in law, or implied malice.^ Consequently, by proof of the 
 publication, the plaintiff makes out a prima facie case. If now, 
 however, the defendant shows a justifiable reason for the publi- 
 cation (as where, by means of his relation to the matter and his 
 duty to the person communicated with, he was privileged to 
 make the statement), it is said that the inference of malice in 
 law is rebutted, and the plaintiff must show mahce in fact, as by 
 proving the communication to have been false and the motive 
 for making it bad.' But this merely means that in such a case 
 the privilege does not cover the libel, and the evidence of motive 
 must be gone into upon the question of mitigation, aggravation, 
 or of exemplary damages. The libel remains a libel, and the 
 liability, which has from the first existed, still exists. But the 
 defendant may show that a false (and therefore non-privileged) 
 communication was made upon an occasion that was privileged, 
 and under an honest belief in its truth (mitigation). The plain- 
 
 ' King V. Root, 4 Wend. 113, 139; Voltz v. Blackman, 64 N. Y. 440, 
 444. 
 
 ' It may be suggested that the use of the term in civil actions is his- 
 torically connected with the notion of guilt once naturally associated with 
 all torts, such as assault and battery, which were also crimes at a time 
 when the two species of liability were constantly involved in one and 
 the same proceeding. It was of such offences that a large part of the 
 business of the courts at first consisted. 1 Pol. & Maitl. 15. 
 
 ' Bush V. Prosser, 1 Kern. 347; Moore v. Man. N. Bk., 123 N. Y. 420; 
 Wilson V. Noonan, 27 Wis. 698, 610. 
 
 11 
 
162 ELEMENTS OF THE LAW OF DAMAGES. 
 
 tiff may show that the motive for the false statement was the de- 
 sire to injure him (aggravation, or exemplary damages).' 
 
 Strictly speaking, however, wherever damages are limited to 
 compensation, proof of motive cannot mitigate the damages; for 
 the damage is to the reputation, and the extent of this injury is 
 not affected by the question whether the defendant's motive was 
 good or bad. Consequently in Massachusetts, where the doc- 
 trine of exemplary damages has never been admitted, it has been 
 held that in an action for slander (which in this respect does not 
 differ from libel), evidence of probable cause for belief in the 
 truth of the charge is not admissible at all. Such evidence has 
 no bearing on liability, and it is not available for the purpose of 
 mitigating damages, because the damages are measured by the 
 injury.^ 
 
 Before dismissing the question of liability, it may be remarked 
 that if what has been said about malice be true, it must follow 
 that an insane person may be held responsible in libel, or slander; 
 but the question has been considered by the Supreme Court of 
 Massachusetts, in a manner which seems practically to dispose 
 of it. The action is slander, and the defence insanity. The 
 court, while observing that they give no opinion how far or to 
 what degree insanity is to be received as an excuse for defama- 
 tory words, remark: "When the derangement was great and 
 notorious, so that the speaking the words could produce no 
 effect on the hearers, it is manifest no damage would be in- 
 curred. But where the degree of insanity is slight or not uni- 
 form, the slander might have its effect, and it would be for the 
 jury to judge upon the evidence before them, and measure the 
 damages accordingly." In other words, a libel is always a libel, 
 and actionable words are always actionable; if they consist of 
 the ravings of a person known to be, or who evidently is a 
 lunatic, his words will produce no damage to the reputation of 
 any one, but otherwise damage may result; the question is 
 one of the amount of damage, which is one of fact for the jury. 
 
 > Shipp V. Story, 68 Ga. 47; Bennett v. Smith, 23 Hun, 50. 
 
 " Watson V. Moore, 2 Cush. 133. Cf. Rearick v. Wilcox, 81 DI. 77; 
 Fenstermaker v. Tribune Pub. Co., 12 Utah, 439; 13 id. 532, 35 L. R. A. 
 611. 
 
PERSON AND FAMILY. 163 
 
 The law is the same with regard to torts by persons under age. 
 For the prattle of a malicious child no one goes to a jury for 
 damages; but a person under age is responsible for the effect 
 of his words as in any other case. " God forbid," says Lord 
 Kenyon, C. J., "that he should not be answerable." * 
 
 Coming now to the question of the measure of damages, it is 
 clear that no definite rule can be laid down, as is possible in 
 cases affecting property and contracts, for there is no property 
 or pecuniary standard to be applied. The direct injury suffered 
 is damage to the reputation, and the extent of this depends upon 
 all the facts proved in each particular case. Added to this, 
 however, we have injuries to feelings,^ for these are always the 
 necessary result of defamation, and such consequential dam- 
 ages as may, subject to the rules of proximate cause and certainty, 
 be proved. Generally speaking, all facts having a tendency to 
 mitigate or aggravate damages, or to show the motive of the 
 libel, may be proved on one side or the other, and the amount 
 of the verdict is in the discretion of the jury. 
 
 The action of slander lies for oral defamation. In Kbel, mere 
 proof of publication is sufficient. But of spoken words the law 
 takes a very different view. Insulting language or conduct alone 
 is, as already explained, never a ground for damages.^ Indeed, 
 it has been expressly decided that although insulting language 
 or conduct may aggravate an assault, it is not itself an assault.* 
 It is clear that if an action lay for all inconsiderate, vituperative, 
 reproachful, or condemnatory words, it would lead to great 
 abuses, and fill the courts with absurd and trivial suits. It is 
 equally clear that for words naturally and necessarily producing 
 injury an action must lie. But a third class of cases also exists 
 where the words, though not in themselves such as naturally 
 lead to the inference of damage, do, as a matter of fact, produce 
 it, and in this case the person injured has a clear right to redress. 
 Had the law of defamation developed itself in what may be 
 termed a natural way, the cases would have classified them- 
 
 ' Jennings v. Rundall, 8 T. R. 335, 337. 
 
 ' Markham v. Russell, 12 All. 573; Blumhardt v. Rohr, 70 Md. 328. 
 
 * LynclLW. Kmgtt, 9 H. L. Cas. 577. 
 
 * Steams V. Saimpssm, 59 Me. 568. 
 
1'64 ELEMENTS OF THE LAW OP DAMAGES. 
 
 selves under these heads in accordance with the actual facts; 
 but an arbitrary rule introduced into the law of England in 
 early times has to a certain extent made the law of slander arti- 
 ficial. Instead of inquiring, under the rule of certainty and 
 proximate cause, into the effect of the words spoken, the courts 
 early laid it down as matter of law that in the following cases 
 only were words slanderous, or actionable, per 5e.- 1. Words 
 falsely spoken imputing the commission of a crime involving 
 moral turpitude, for which the party might be indicted and 
 punished. 2. Words imputing an infectious disease, likely to 
 exclude him from society. 3. Words imputing unfitness to 
 perform the duties of an office or employment. 4. Words 
 prejudicing him in his profession or trade. 5. Words tending 
 to disinherit him.' In all other cases spoken words are either 
 (a) not actionable at all, or only actionable (6) on proof of 
 special damage. In other words, in the five cases mentioned, 
 the imputation imports damage, and if nothing else but the 
 imputation is proved, the jury can give substantial damages.^ 
 It has been said ' that whether the words in themselves are 
 actionable or not, no evidence of any particular loss or injury 
 is admissible, unless such loss or injury is alleged in the dec- 
 laration; this means such losses as do not necessarily follow 
 from the slander. Damages necessarily involved in the cause 
 of action are always recoverable. If it were requisite in all 
 cases to state these, the distinction between words actionable 
 per se and others would disappear. To accuse an innocent per- 
 son of a crime gives him a right to some damages, and he may 
 prove its effect on his reputation ; but if he has lost a position by 
 it, he must allege this, and prove it, as in the case of any other 
 consequential damages. In the case of words not actionable 
 
 ' Pollard V. Lyon, 91 U. S. 225; Alexander v. Jenkins, [1892] 1 Q. B. 
 797. The aversion of the English courts in early times to holding words 
 actionable was very marked. It is suggested in a recent work that this was 
 originally a peculiarity of the royal administration of justice, and that 
 slander was redressed in the local or ecclesiastical courts. 2 Pol. & Maitl. 
 535. 
 
 ' Tripp V. Thomas, 3 B. & C. 427. 
 
 " Dicken v. Shepherd, 22 Md. 399, 415. 
 
PERSON AND FAMILY. 165 
 
 fer se the right of action depends on the statement of some 
 special injury in the form of a claim for special damages. The 
 ordinary rules as to proximate cause and remoteness of course 
 apply. 
 
 Illustration. 
 
 Action of slander by A. based on a statement alleged to have 
 been made by B. to A.'s employers that A. had removed from his 
 landlord's house leaving a month's rent (two shillings) unpaid, 
 and that B. could not get the money from him. Special damage, 
 dismissal of A. by his employers. Held, that the action would not 
 lie; the dismissal is not a natural consequence of the slander.' 
 
 This arbitrary division, making it necessary to prove special 
 damage in the case of any imputation not falling within the five 
 classes of actionable words is an anomaly, and has produced re- 
 sults much regretted by the courts which have been forced to 
 apply the rule.^ The objection to it is not that there should be 
 no division, but that the division as established is artificial. 
 Thus no imputation could more necessarily and naturally import 
 damage than that of unchastity in the case of a woman of good 
 character. Yet to recover she must prove special damage, and 
 much ingenuity has been resorted to in order to eke out proof in 
 such cases; and it has been decided that if in consequence of 
 such words a woman is deprived of substantial benefit from the 
 hospitality of friends, this is enough to maintain an action.' 
 
 Perhaps, on the whole, it may be said that the general rule 
 which pervades our entire law is that an action does not lie for 
 words spoken or written, without proof of ensuing damage. 
 This is seen in the action of deceit. No action lies for a mere 
 falsehood, however glaring, unless it causes damage of some 
 kind. And in the action called slander of title, special damage 
 must be shown.* To this general rule the action of slander for 
 
 ' Speake v. Hughes, [1904] 1 K. B. 138. 
 
 ' Roberts v. Roberts, 33 L. J. Q. B. 249; Lynch v. Knight, 9 H. L. Cas. 
 577; Alexander v. Jenkins, [1892] 1 Q. B. 797. 
 
 ' Moore v. Meagher, 1 Taunt. 39; Williams v. Hill, 19 Wend. 305. 
 
 * Malachy v. Sloper, 3 Bing. N. C. 371. Cf. Brook v. Rawle, 4 Ex. 521; 
 Pitt V. Donovan, 1 M. & S. 629. 
 
166 ELEMENTS OP THE LAW OF DAMAGES. 
 
 actionable words and of libel are exceptions, warranted by the 
 fact that in these cases damage is logically imported. The 
 anomaly then is that in slander there should be a strict rule of 
 law that many words logically importing damage shall be treated 
 as if they imported none. 
 
 Rules 41-44. 
 
 Illustrations. 
 
 (a) In an action for slander, charging plaintiff with larceny, the 
 defendant offers evidence, in mitigation of damages, of plaintiff's 
 general bad character. The evidence tends to show the value of 
 the reputation for injury to which the action is brought, and is 
 admissible.' 
 
 (6) The suit is slander for words charging the plaintiff with 
 stealing from his employer. The defendant offers to prove in miti- 
 gation that in a single instance he was reputed to have stolen from 
 him. The evidence is inadmissible. What is in issue is the general 
 character of the party, not common rumor as to particular trans- 
 actions.^ 
 
 (c) In an action for slander, charging the female plaintiff with 
 unchastity, the defendant offers evidence tending to impeach her 
 general reputation for chastity at the time when the words were 
 spoken; the court excludes the evidence. There must be a new 
 trial ; under a general denial the plaintiff's character in the respect 
 impugned is in issue.' 
 
 (d) The defendant is proved to be worth more than $100,000; 
 the plaintiff is a man in humble life. The slander imputed to him 
 the crime of perjury, in reference to his testimony in a suit to re- 
 cover the wages of his labor; the words were uttered in a public 
 place, in the hearing of many persons. A verdict of $2,000 is not 
 excessive.* 
 
 ' Sayre v. Sayre, 1 Dutch. 235. 
 
 = Mahoney v. Belford, 132 Mass. 393. 
 
 " Duval V. iJifey, 32 Oh. St. 604; what she sues for is the damage to 
 the value of her reputation as a whole. A want of good repute in anj^ one 
 respect must impair this value. 
 
 ' Flagg V. Roberts, 67 111. 485. 
 
PERSON ANB FAMILY. 167 
 
 (e) The action is for calling A. B. a thief; there is no evidence 
 in mitigation. A verdict of $1,000 will not be set aside.' 
 
 Malicious Pbosecxjtion. False Imprisonment. — The 
 action for personal injury is based primarily on damage to the 
 person only; slander and libel on damage to the reputation. 
 The action for malicious prosecution may be grounded on a 
 violation not merely of the right to one's reputation, but also to 
 that of liberty and property.^ The cause of action exists against 
 any one who without reasonable and probable cause institutes 
 a prosecution for a crime falsely charged to have been com- 
 mitted. It would be idle to attempt to enumerate all the heads 
 of proof and elements of damage which may need to be consid- 
 ered in an action for malicious prosecution. It is enough here to 
 say that, as in slander and libel, every particular of aggravation 
 or mitigation may be gone into, that consequential damages will 
 be allowed, subject to the rules of proximate cause and certainty, 
 and that, as in so many other cases of tort, when all the proof 
 is before the jury, the measure of damages is very much in their 
 hands. They may, in a proper case, give exemplary damages ; 
 and on the other hand, if the verdict on appeal is seen to have 
 been clearly rendered under the influence of prejudice, ignorance, 
 or passion, it will be set aside. Inasmuch as a criminal prosecu- 
 tion imports injury to reputation or deprivation of liberty, or 
 expense, or all three, the question of special damage does not 
 properly arise. If the plaintiff's declaration show nothing more 
 than an attempt to indict, that the grand jury has returned the 
 bill "not found," and that the charge preferred was only that of 
 assault, no action will lie without proof of special damage ; for 
 the charge in itself prbduces, as already explained, no necessary 
 injury to the reputation, no expense has been caused, and the 
 right of hberty has not been infringed.' But a declaration of 
 this sort does not, properly speaking, present a case of malicious 
 prosecution. In malicious prosecution legal malice is involved 
 
 ' Miller v. Johnson, 79 111. 58. 
 
 " Savile v. Roberts, 1 Ld. Raym. 374. 
 
 = Byne v. Moore, 5 Taunt. 187. 
 
168 ELEMENTS OF THE LAW OF DAMAGES. 
 
 in the mere fact of prosecuting for a crime without reasonable 
 and probable cause. There is a large class of actions closely 
 resembling mahcious prosecution which are, however, slightly- 
 different in these two respects. These are cases where the plain- 
 tiff in substance complains that the defendant has maliciously 
 made use of process of court against him. Here, as in the case 
 cited above, the act complained of may not of itself import dam- 
 age, and that being the case, special damage must be alleged.' 
 
 The action for false imprisonment differs from malicious pros- 
 ecution (so far as injury is concerned), chiefly, if not altogether, 
 in the fact that the wrong may be accomplished without any 
 prosecution and consequently without injury to reputation. 
 
 Phivact. — No complete classification of personal rights can 
 ever be finally made, because in most cases they are first defined 
 by the protection which the law throws round them, and as 
 society develops and becomes more and more complex, pro- 
 tection is found from time to time to be needed in regard to 
 matters not previously thought of as reqwiring protection. An 
 instance of this is the recent development of the right of Privacy, 
 or the right to be free from intrusion. It is only in modern times 
 that competition in gathering and publishing news, trade ad- 
 vertising, and other causes have produced a tendency to invade 
 the privacy of persons who have no public life of any kind, and 
 by a variety of means force upon them an unwelcome publicity. 
 Thus the attempt has been made to force a private family before 
 the public by the erection of a statue to one of its members; 
 , again, a common case is the unauthorized exhibition of photo- 
 graphs of private persons in public places, or pictures of them in 
 newspapers, for the gain of the exhibitor or pubhsher. When 
 these invasions of privacy were brought to the notice of the 
 courts, the usual existing remedies were found to be applicable, 
 and it is now settled in some jurisdictions that in such case 
 there is not only a right, in equity, to an injunction, but to an 
 action on the case for damages. In New York, in a case in 
 
 ' Frierson v. Hewett, 2 Hill, S. C. 499. 
 
PERSON AND FAMILY. 169 
 
 which a very offensive use was made of the likeness of a young 
 woman for advertising purposes, the Court of Appeals held that 
 no such right of privacy existed. Three judges dissented.' The 
 measure of damages has not yet been much, if at all, con- 
 sidered. The principal head of damage would seem to be the 
 privacy destroyed or impaired, and the jury would have a dis- 
 cretion to give damages proportioned to all the circumstances 
 proved.^ 
 
 Domestic Relations. — Aside from ordinary personal rights, 
 the law redresses interference with the rights growing out of 
 the domestic reMions. Such redress is founded on princi- 
 ples affected by the peculiar character and history of the rela- 
 tion itself. If we consider that between parent and child, we 
 see that it is of necessity not governed in any way by the idea of 
 contract. The child during minority must be under the abso- 
 lute control and protection of some one, and being during this 
 period incompetent to act for itself, must act under the direction 
 of that person according to rules established by law or custom. 
 The relation of guardian and ward is of like nature, the guardian 
 being a person substituted for the parent. The relation of hus- 
 band and wife, though now resting partly on agreement, is in 
 primitive conditions of society a fixed relation, based on the 
 subordination of the wife, while that of master and servant (with 
 which we now associate some definite notion of contract) was 
 originally that of master and slave; the responsibiUty of the one 
 for the acts of the other is still founded upon some theory of 
 
 ' Roberson v. Rochester F. B. Co., 171 N. Y. 538 (see dissenting opin- 
 ion by Gray, J., p. 557). Cf. Atkinson v. Doherty, 121 Mich. 372 ; 
 Schuyler v. Curtis, 147 N. Y. 434. This declaration of the law was 
 immediately followed in New York by the passage of an act securing 
 the right to privacy in all such cases, making the use of names and 
 pictures a misdemeanor, and also authorizing an injunction and damages. 
 L. 1903, c. 132. 
 
 ' Pollard V. Photographic Copying Co., 40 Ch. D. 345; Murray v. Oast 
 Lith. & E. Co., 8 Misc. 36; Corlies v. E. W. Walker Co., 64 Fed. R. 280. 
 See 4 Harv. Law Rev. 193 ; The So-called Right of Privacy, by Elbridge 
 L. Adams, Rochester, The Union and Adveitiser Co., 1901. 
 
170 ELEMENTS OF THE LAW OP DAMAGES. 
 
 control or responsibility often distinct from that of contract.' 
 All these relations are historically connected with the primitive 
 institution of the family, with the father as its head. His early 
 right of control over his wife, child, and servant closely re- 
 sembled, and indeed probably antedated, rights of property, and 
 even at the present day his wife and child, as well as his servant, 
 are all regarded by the law as owing him service. As the rights 
 of the individual have been developed, and the principle of free- 
 dom of contract applied more and more extensively to human 
 affairs, the fixed rules of law governing the family have declined 
 in importance, but they still constitute a class apart, and espe- 
 cially so in respect to the law of damages. 
 
 One large class of actions grovying out of the domestic rela- 
 tions, is that in which the master sues to recover for an injury 
 done his servant, and under the same head, the husband for in- 
 jury to his wife, the father to his child.' It is generally said that 
 these actions are grounded upon the loss of service, and it is no 
 doubt true that the rules of common-law pleading required an 
 allegation per quod sermtiwm amisii. The reason of this seems 
 to have been that as the wrong was committed against the person 
 of the servant, the master suffered only indirectly, and as it was 
 clear that a master suffered loss of service, so the idea was ex- 
 tended to the case of husband and wife and father and child. 
 On the other hand, that the relations of husband and vsdfe, and 
 parent and child include many ideas entirely different from 
 that imported by service, is obvious, and must from the earliest 
 times have been so. 
 
 The injury suffered is in its nature different in the different 
 cases. In the case of master and servant the injury is really loss 
 of the pecuniary value of the service. In the case of a wife, the 
 injury is not merely this, but the husband may have to care for 
 
 ' 1 Hammond's Blackst. Comm. 719 (note 22); Holmes' Com. Law, 228; 
 Maine's Ancient Law, ch. v. 
 
 " In this country, if tlie father is dead and his widow becomes respon- 
 sible for the children, it is generally held that she may maintain the action 
 for loss of service. McGarr v. National & P. Worsted Mills, 24 R. I. 
 447; 60 L. R. A. 122. She may take his place in this respect even during 
 his lifetime. Ihid. 
 
PERSON AND PAMILT. 171 
 
 his Wife during an illness, and, as he is bound to protect and 
 maintain her, be put to labor and expense in other ways. In the 
 case of a child, not only is there a loss of service, but the injury 
 may, in one particular case, that of seduction, be of such a char- 
 acter as to entail not only great incidental loss, in the way of 
 medical expenses, but also great mental distress and anxiety on 
 the part of the parent. In all but the last case the common law 
 recognizes two distinct rights of action. First, the servant, wife, 
 or child has a right of recovery in some form as for a personal 
 injury, and in this action damages for pain and injury to feelings 
 are recoverable ; this disposes of all the heads of damage which 
 may be supposed to be involved in the personal injury; the men- 
 tal suffering of the master, husband, or parent is not itself a head 
 of damage, because the cause of action is injury to the servant, 
 mfe, or child. (It is not, for reasons already given, an independ- 
 ent cause of action.) By whom the action is brought does not 
 matter. At common law, for instance, the husband having a 
 direct interest in the result of the suit niust be one of the parties' 
 plaintiff. He was entitled tO-theJruits of the verdict; but this 
 did not affect the fact that for libel, assault, and battery, etc., a 
 personal right of action existed. Independently of this the hus- 
 band was entitled to recover the damages caused to him through 
 the loss of the service of the wife, — and these two actions to- 
 gether exhausted all the heads of damage. And such is the law 
 generally to-day.' 
 
 A similar double action and double right to damages has al- 
 ways existed in the case of master and servant, and parent and 
 child. Consequently in this class of actions generally the meas- 
 ure of damages in the action by the master, parent, or husband 
 has been practically limited to the damage to him which would 
 not come into consideration in the action for the injury to the 
 person. Ordinarily this would be little but the loss of service; 
 but this may not be all. As just pointed out, one consequence to 
 the husband, or parent, is very likely to be loss of time, and care, 
 and expense of attendance. For these a recovery is generally 
 allowed. If a rule were to be stated it would be as follows: — 
 
 ' Bigelow on Torts, *266; Smith v. City of St. Joseph, 55 Mo. 456. 
 
172 elements of the law of damages. 
 
 Rule. 
 
 45. In an action by a husband, father, or master for a tort, 
 affecting the person of his wife, child, or servant, the 
 measure of damages is the amount of pecuniary injury, 
 present and prospective, proximately ensuing to one 
 occupying the relation in qusstion towards the person 
 who has suffered the injury. 
 
 Illttstkations. 
 
 (a) Husband and wife recover judgment in an action for per- 
 sonal injuries. The husband now sues to recover damages for the 
 loss of his wife's services. The proper measure of damages is what 
 he has paid for hired service during his wife's disability, as well as 
 for the value of his own time,, spent in care of her, and expenses of 
 medical attendance.' 
 
 (b) He may also recover for the loss of his wife's society.^ 
 
 (c) In an action by a husband to recover for loss of the wife's 
 services through personal injuries, it appears that the latter was 
 carrying on a millinery business as manager for the plaintiff, and 
 that her services were of considerable pecuniary value. The 
 measure of damages is the value of the services.' 
 
 (d) A father brings a similar suit growing out of an injury in- 
 flicted on his child. The recovery for loss of services is limited to 
 the period of minority.* 
 
 (e) Suit is brought for loss of services of a son, through assault 
 and battery by defenda'nt. The jury cannot take into account the 
 wounded feeUngs of the parents; a separate action lies on behalf 
 of the child, in which the damages are very much in the discretion 
 of the jury.^ ^ 
 
 (/) Suit is brought for loss of service of a son through defend- 
 ant's negligence. Exemplary damages are not recoverable.' 
 
 ' Lindsey «. Danville, 46 Vt. 144; Smith v. St. Joseph, 65 Mo. 456; 
 Selleck v. Janesville, 104 Wis. 570; 47 L. R. A. 691. 
 
 ' Kimberly v. Howland, 143 N. C. 398; 7 L. R. A. (n. s.) 545. 
 
 ' Citizens' S. Ry. Co. v. Termaine, 121 Ind. 375. 
 
 * Frick V. St. Louis, K. C. & N. Ry. Co., 75 Mo. 542; Evansich v. Gulf, 
 C. & S. F. Ry. Co., 57 Tex. 123. 
 
 ' Cowden v. Wright, 24 Wend. 429. 
 
 « Gilligan v. New York & H. R. R. Co., 1 E. D. S. 453; Black v. Carrol- 
 ton R. R. Co., 10 La. An. 33. 
 
PERSON AND FAMILY. 173 
 
 (g) Suit by mother for loss of service of child. Damage for loss 
 of the child's society cannot be recovered.' 
 
 (h) The child is too young to render any service. The father 
 recovers for trouble in the care and cure of the child, or in the case 
 of death compensation for reasonable funeral expenses and loss 
 of time.' 
 
 The action for seduction differs from those which have just 
 been mentioned in the fact that there is no double right. The 
 person seduced, however grievously wronged, could not by com- 
 mon-law rules maintain a suit against the seducer, and conse- 
 quently the only right of redress lay in the suit by the father, or 
 any person entitfed to her services, for any loss of service caused 
 by the seduction. By the English law the father, as father, was 
 not injured, and the relation of master and servant was an abso- 
 ■ lute prerequisite to establish Uability.' But, the liability once 
 established, it was early settled that recovery could be had for 
 every element of damage ; and this includes, when the plaintiff 
 is the father, as is usually the case, his mental suffering. All cir- 
 cumstances of mitigation and aggravation are allowed, and the 
 damages are very much at large, and in the discretion of the jury. 
 So far as the rule is capable of exact statement, it may be ex- 
 pressed as follows : — 
 
 Rule. 
 
 46. In an acticm for seduction the measure of damages is the 
 total injury caused to the plaintiff, including loss of 
 service, time, care, and expenses of attendance, and, 
 if he is the father, for the dishonor, distress, and 
 outrage. 
 
 > McGarr v. National & P. Worsted Mills, 24 R. I. 447; 60 L. R. A. 
 122. 
 
 ' Dennis v. Clark, 2 Gushing, 347; Southern Ry. Co. v. Covenia, 100 
 Ga. i6; 40 L. R. A. 253. Cf. Horgan v. Pacific Mills, 158 Mass. 402. 
 
 ' Cf. Manly v. Field, 7 C. B. (n. s.) 96 with Terry v. Hutchinson, 
 L. R. 3 Q. B. 599. The suit is commonly brought by the father, but this 
 is not necessary. It may be brought by any one entitled to service; e. g., 
 by an uncle for the seduction of a niece, living with him and actually 
 rendering service. Manvell v. Thomson, 2 C. & P. 303. 
 
174 ELEMENTS OF THE LAW OP DAMAGES. 
 
 The history of the action for seduction is a remarkable illus- 
 tration of the triumph (through the operation of the principle 
 that damages must be adequate to the real injury) of substance 
 over form. Beginning with cases in which the loss of actual ser- 
 vice only was redressed, the courts gradually reduced the im- 
 portance of the allegation of this loss into Kttle more than a mere 
 matter of inducement. "The parent comes into court as a mas- 
 ter, but goes before the jury as a father." Finally, we may find 
 judges at the present day taking the last step, denying that the 
 action is dependent on loss of service, and resting it on the rela- 
 tion of parent and child and their correlative rights and duties.' 
 
 Generally, in cases of seduction, the evidence to prove loss of 
 service is the fact of the birth of a child, and the consequent 
 illness and confinement; but this is not essential. There may 
 be no child, in which case evidence of loss arising from the 
 necessity of medical attendance, and watching, has been held 
 sufficient.^ In seduction the gist of the action itself is the mere 
 right to service, but damages are measured by the disgrace, etc., 
 caused.* 
 
 Rule 42. 
 
 Illustration. 
 
 The action is trespass for the seduction of a daughter. The 
 foundation of the action being loss of service, the pecuniary means 
 of the plaintiff may be given in evidence to show the effect upon 
 him of this loss.* 
 
 Criminal Conversation. — Quite different from the ac- 
 tion for seduction is that of criminal conversation. The liabiHty 
 has nothing to do with loss of service, but rests on a view of the 
 
 ' Ellington v. Ellington, 47 Miss. 329. Action lies if a daughter over 
 age actually performs service, although the service be terminable at will. 
 Lipe V. Eisenlerd, 32 N. Y. 229. 
 
 • Manvell v. Thomson, 2 C. & P. 303; Abrahams v. Kidney, 104 Mass. 
 222; Blagge v. Ilsley, 127 Mass. 191; White v. Nellis, 31 N. Y. 405. 
 
 ' Terry v. Hutchinson, L. R. 3 Q. B. 699; Hartley v. Richtmyer, 
 4 Comst. 38 ; Damon v. Moore, 6 Lans. 454. 
 
 * Grable v. Margrave, 4 111. 372. 
 
PERSON AND FAMILY. 175 
 
 relation of husband and wife, not entirely unlike that of prop- 
 erty. The interest of a husband in his wife growing out of his 
 relation as husband is expressed by the word consortium, im- 
 porting not merely the exclusive right to marital intercourse, but 
 to her society and aid, in the relation established by marriage. 
 Any invasion of his right to exclusive marital intercourse, 
 whether accomplished by consent of the wife, or otherwise, gives 
 him an action. Damages may be awarded for the alienation of 
 the wife's affections, for the loss of her society, and for the loss of 
 her services. It has been said that the measure of damages is the 
 value of the wife of whom the co-respondent has despoiled the 
 plaintiff; * but it must not be supposed from this that an exact 
 pecuniary standard is appUed. The value even of a wife's ser- 
 vice in the care of her household and the nurture and education 
 of her children is incapable of precise measurement, and practi- 
 cally the husband is allowed to recover for all the various evil 
 consequences of the wrong, in whatever sum the jury may think 
 adequate, while all matters of aggravation and mitigation are 
 admissible in evidence. 
 
 ' Cowing V. Cowing, 33 L. J. (n. s.) Prob. 149; Bigaouette v. Paulet, 
 134 Mass. 123; Yundt v. Hartnmft, 41 111. 9. 
 
CHAPTER XIV. 
 
 DEATH BY WRONGFUL ACT. 
 
 By the common law no action lay for causing the death of a 
 human being; ' a number of reasons have been given for the 
 rule, but none of them seem to explain it entirely. Thus, one 
 reason given is, that by the common law the right to maintain 
 any personal action died with the person ; but this rule referred 
 only to the person injured, and does not explain why the right 
 of a master to recover damages for loss of service should be 
 wholly obliterated if the injury has resulted in the death of the 
 servant. Another is that in the case of felonious killing the pri- 
 vate is merged in the public offence; but this does not explain 
 the rule in the case of non-felonious killing. Again, where the 
 death might be treated as the result of a breach of contract (as 
 in the case of the death of a wife or a servant caused by want of 
 professional skill) no reason is apparent why a recovery should 
 not be had at least for the full prospective value of the service 
 lost through the death; but whatever the real reason may have 
 been, the rule has now been so long established, that it is beyond 
 question,^ the result, however, proving so unsatisfactory that 
 
 ' The rule of the general maritime law is the same. The Harrisbui^g, 
 119 U. S. 199; Rundell v. C. G. Transatlantique, 100 Fed. R. 655; 49 
 L. R. A. 92. In England a father cannot recover either at common law 
 or under the Fatal Accidents Act, 1846 (Lord Campbell's Act), the funeral 
 expenses to which he has been put in burying an unmarried infant daughter 
 whose death was caused by defendants. Clark v. London General Omnibus 
 Co., Ltd., [1906] 2 K. B. 648. A master cannot maintain an action for 
 injuries which cause the immediate death of his servant. Ibid. 
 
 ' See the leading authorities and the grounds of the rule fully examined 
 in Hyatt v. Adams, 16 Mich. 180; Grosso v. Delaware, L. & W. R. R. Co., 
 50 N. J. L. 317. Cf. Gulf, Col. & Santa Fe Ry. Co. v. Beall, 91 Tex. 310; 
 41 L. R. A. 807; Baker v. Bolton, 1 Camp. 493; Osborn v. Gillett, L. R. 
 8 Exch. 88. 
 
DEATH BY WRONGFUL ACT. 177 
 
 the common law has been modified, both in England and this 
 country, by statute, so as to give a right of action, in all cases 
 of death by wrongful act, for the benefit of the family of the 
 deceased. 
 
 But the statutory action is not now necessarily the only ac- 
 tion in such cases. In modern systems of practice actions of 
 tort survive by statute, and hence it has been made a question 
 whether in jurisdictions in which there is a statutory remedy 
 for death by wrongful act, and also a statute causing the survival 
 of actions of tort, how far the action for death is consistent with 
 the survival of the right of action for the injury which led to the 
 death. The better opinion is that the two actions are not incon- 
 sistent. In the ordinary action for personal injury the cause of 
 action is the damage suffered by the person himself, including 
 prospective damages, which may extend to the time of his death, 
 but no further; these damages in case of his actual death sur- 
 vive for the benefit of his estate and so may go to his creditors. 
 In the statutory action for causing death, the cause of action is 
 the damage suffered by dependent relatives through the death, 
 and by statute is vested in the personal representative only for 
 their benefit; the damages begin from the time of death, and are 
 not part of the deceased's estate. There would seem to be no 
 reason why these two actions should not exist side by side to- 
 gether with actions by master, husband, or parent for loss of ser- 
 vice. Such suits would, however, involve no special rules. It is 
 only the statutory action for causing death which is sui generis.^ 
 
 It is held that a settlement with a person injured during his 
 life bars the claim for the homicide.^ But this rule should only 
 apply where the statute is held to give no new cause of action.' 
 
 ' Brown v. Chicago & N. W. Ry. Co., 102 Wis. 137; 44 L. R. A. 579. 
 The opinion in this case fully collates and considers all the leading cases, 
 English and American. See also Tiffany, "Death by Wrongful Act," § 126. 
 Cf: Pittsburgh, Cincinnati, C. & St. L. Ry. Co. v. Moore, 152 Ind. 345 ; 44 
 L.R.A.638; Broughel«.SouthemN.E.Tel.Co.,72 Conn. 617; 49L.R.A. 404. 
 
 ■' Southern Bell T. & T. Co. v. Cassin, 111 Ga. 575; 50 L. R. A. 694; 
 Read v. Great Eastern Ry. Co., L. R. 3 Q. B. 555. 
 
 ' Stewart v. United E. L. & P. Co., 104 Md. 332; 8 L. R. A. (n. 8.) 384. 
 Cf. Legg V. Britton, 64 Vt. 652. Where, as in Vermont, it is held that the 
 statutes of the State give only one cause of action, this is distinguished by 
 
 12 
 
178 ELEMENTS OF THE LAW OF DAMAGES. 
 
 The statute not only gives the right of action, but establishes a 
 general principle of compensation. Sometimes, in this country, 
 it imposes a pecuniary limit of recovery (often $5,000) though no 
 such limit is prescribed by the English Act from which ours are 
 taken. The general principle of compensation is the pecuniary 
 loss caused to the immediate relatives by the death. Where there 
 is no pecuniary limit, the action is governed, as far as may be in 
 applying the statutory rule, by common-law principles of com- 
 pensation. Based as it is upon pecuniary elements, it shows at 
 once a tendency to the production of rules ; on the other hand, 
 involving matters in which pecuniary standards are very difficult 
 of application, and a cause of action pecuharly likely to excite 
 the interest, prejudice, and passion of the jury, it is apt to illus- 
 trate in a striking way the relation between that tribunal and the 
 court. This action shows perhaps more clearly than any other 
 the hmits of the rule of certainty. The rule of certainty does not 
 apply to the amount of the damages; consequently, whenever it 
 appears that there is an injury, that this is pecuniary^ and has 
 been caused by the death, no matter how impossible it is to tell 
 what the amount of benefit derived from the continuance of the 
 life would have been, the plaintiff must recover something, and 
 so long as the amount is not out of all proportion to the injury, 
 the verdict will stand. The amount may be a matter "partly of 
 conjecture." ^ 
 
 Rule. 
 
 47. In the statutory action for causing death the measure of 
 damages is the amount of pecuniary injury {propor- 
 
 being called a "right of recovery." Ibid. 659. But what is a right of re- 
 covery but a right of action? As to the existence of more than one right of 
 action in cases of injury where death ensues, see Seward v. Vera Cruz, 
 L. R. 10 A. C. 59 ; Louisville & Nashville Ry. Co. v. McElwain, 98 Ky. 700; 
 34 L. R. A. 788; Lubrano v. Atlantic Mills, 19 R. I. 129; 34 L. R. A. 
 797; Be Mayo, 60 S. C. 401; 54 L. R. A. 660. For review of cases and 
 conflict of authorities, see Sweetland v. Chicago & G. T. R. Co., 117 Mich. 
 329; 43 L. R. A. 568. When two rights of action are recognized an appre- 
 ciable interval of time must intervene before death for any such right of 
 action to attach. This question, except in perfectly clear cases, would be 
 for the jury. Sweetland v. Chicago & G. T. R. Co., ubi supra. 
 ' Grand Trunk Ry. Co. v. Jennings, 13 App. Cas. 800, 804. 
 
DEATH BY WRONGFUL ACT. 179 
 
 iionate to the statutory limit, if any) caused by the death 
 to those entitled to the henefi of the statvie, calculated, 
 not merely with reference to legal liability to contribute to 
 support, but to a reasonable expectation of pecuniary 
 benefit from the continuance of the life. 
 
 Illustrations. 
 
 (o) Parents sue for the death of a son, twenty-seven years of 
 age. He lived away from his parents, but had been in the habit 
 of visiting them and making them occasional presents of provisions, 
 amounting to about £20 a year. They recover £120.* 
 
 (b) A father sues for the death of a son. The father is old and 
 infirm, the son young, earning good wages and assisting his father 
 in work for which the latter was paid 3*. 6d. a week. He recovers 
 £75.^ 
 
 (c) In an action brought by the father of the deceased, it appears 
 that the father is old and infirm; the only evidence of reasonable 
 pecuniary expectation is that the deceased five or six years before 
 gave his father money when the latter was out of work. This is 
 evidence enough to go to the jury.^ 
 
 (d) The mere possibility of the accumulation of an estate to 
 be inherited by his children by a decedent who had never accumu- 
 lated any property is remote and speculative. It is error to call it 
 to the attention of the jury.* 
 
 Mental sufifering or loss of society cannot be taken into the ac- 
 count. The measure of damage is not the loss or suffering of the 
 deceased, but the injury resulting from his death to his family.' 
 The whole inquiry turning on probability, with regard to mat- 
 ters in their nature uncertain, the damages are very much in the 
 discretion of the jury." Nevertheless there are. certain rules for 
 
 ' Dalton V. Southeastern Ry. Co., 4 C. B. (n. s.) 296, 
 
 " Franklin v. Southeastern Ry. Co., 3 H. & N. 211. 
 
 ' Hetherington v. Northeastern Ry. Co., 9 Q. B. D. 160. 
 
 -* Wiest V. Electric Traction Co., 200 Pa. 148 ; 58 L. R. A. 666. 
 
 « Paulmier v. Erie R. R. Co., 34 N. J. L. (5 Vr.'* 151, 157; Blake v. 
 Midland Ry. Co!, 18 A. & E. (n. s.) 93. 
 
 « Railroad Co. ■;;. Baron, 6 Wall. 90; Penn, R. R. Co. V. McCloskey, 23 
 Pa. St. 526, 
 
180 ELEMENTS OP THE LAW OF DAMAGES. 
 
 the guidance of a jury which it will not do to overlook, because, 
 here as elsewhere, if the verdict is so large as to show plainly that 
 more than the legal elements of injury have been compensated, 
 or so small as to show that these elements have not been properly 
 compensated, the verdict will be set aside as excessive or inade- 
 quate. To understand how the matter is dealt with by the courts 
 it is best to take, what may be regarded as a typical instance, that 
 of the death of the father of a family, the suit being brought for 
 the benefit of his widow or minor children. In this case they 
 lose clearly the value of the husband and father's support, of the 
 wife during hfe, and of the children during their minority, and 
 evidence is admissible as to all the elements entering into the 
 probable value of the life to the widow and next of kin.' 
 
 Rule. 
 
 48. In the case of the death of the head of the family, the meas- 
 ure of damages is governed by so much of what the 
 deceased would have probably earned by his labor or 
 have accumulated during the residue of his life (pro- 
 portionate to the statutory limit, if any) o« would have 
 probably gone to the benefit of his family, taking into 
 consideration his habits of living, his age, and his 
 ability and disposition to labor and benefit them. 
 
 Illustration. 
 
 Deceased leaves no widow, and but three children, all grown up. 
 Two sons support themselves ; the daughter is married. A verdict 
 is obtained for $30,000, and this being set aside as excessive, the 
 plaintiffs on a new trial recover 127,500. This is held to be ex- 
 cessive, and the plaintiffs are given the option of reducing the 
 verdict to $15,000, or taking a new trial. The reasoning of the ; 
 court is in substance as follows: First. As the parent owed no 
 duty of support, and there is nothing to show "any fixed allowance 
 or casual benefactions," the children were deprived of "no imme- 
 
 ' Tilly V. Hudson R. R.. R. Co., 29 N. Y. 252; Bait. & O. R. R. Co. v. 
 Wightman, 29 Gratt. 431; Pym v. Gt. N. Ry. Co., 4 B. & S. 396; Grand 
 Trunk Ry. Co. v. Jennings, 13 App. Cas. 800. 
 
DEATH BY WRONGFUL ACT. 181 
 
 diate pecuniary advantage." Second. At his death he was in busi- 
 ness with his sons and son-in-law. His death deprived the surviving 
 partners of the benefit of his credit, capital, sldll, and expectations. 
 But this injury is not within the statute. Third. It was claimed 
 that the next of kin had a reasonable expectation of having from 
 their father {qua father) service or counsel in their affairs. Con- 
 sidering all the circumstances of the case, compensation for this 
 injury (if any) could not exceed a small sum without being exces- 
 sive. Fourth. The principal basis for plaintiffs' claim was that 
 the death of deceased put an end to accumulations which he might 
 thereafter have made, and which might have come to the next of kin. 
 He had accumulated about $70,000, all of which, except $10,000 
 capital placed in business, seems to have been permanently invested. 
 By his will the bulk of his property has been given to his children. 
 As to this it is held that no account could be taken of the income 
 derivable from investments, because these went in bulk to the 
 children, but that in determining probable future accumulations 
 attention should be restricted to such as would arise from the labor 
 of deceased in his business. His receipts for two years were proved ; 
 what he expended was not proved, but was left to be inferred from 
 his mode of life. At death his age was about fifty-six and a half, 
 his expectation of Hfe was sixteen and seven-tenths years. The 
 plaintiffs' counsel calculate that calling his income $10,000 and his 
 expenditure $1,000, the present worth of his net income for Hfe 
 was $27,710.32. But assuming the value of the loss of deceased's 
 service or counsel to be small, as already decided, the verdict must 
 have asstuned that the deceased would certainly continue to work, 
 and to gain the same income down to the day of his death; that-he 
 would certainly have retained sufficient health and strength for 
 this purpose, that he would have met ■with no losses, and that the 
 next of kin would have received the benefit of the whole. As these 
 matters are all uncertain, the verdict is plainly excessive.* 
 
 To look at the matter in another way, what are the heads of 
 damage in cases of this kind ? From the cases it appears that 
 in an action for the death of the head of a family there may be 
 matters of proof and heads of loss, as follows : 1. Probable du- 
 ration of joint lives of husband and vrife by the tables. 2. The 
 same as to husband and each of the children. 3. Any other 
 
 ' Demarest v. Little, 47 N. J. L. 28. 
 
182 ELEMENTS OF THE LAW OP DAMAGES. 
 
 circumstances affecting this question, e. g., health, age, etc. 
 4. Probability of advancement or promotion, if any. 5. Prob- 
 ability of accumulations, if any. 6. Property diverted from 
 wife or children by death. 7. Support and other reasonable 
 expectations of pecuniary benefit of wife during life. 8. Sup- 
 port of children during minority. 9. Reasonable expectation of 
 benefit by children. 10. Instruction, physical, moral, and in- 
 tellectual training of a father. 11. Loss of care, etc. of a hus- 
 band. 12. Loss of social position, if any. 13. Funeral expenses. 
 As to every head, the evidence must be examined to see what 
 amount it would warrant, and whether the jury has not allowed 
 too much or too little. It is within these limits that the case is 
 subject to the discretion of the jury. So far as is practicable, 
 the court tests the verdict by legal standards. 
 
 In jurisdictions in which there is no pecuniary limit of re- 
 covery, the measure of damages does not need to be propor- 
 tioned to an arbitrary standard; the recovery is for the full 
 extent of the pecuniary injury caused by the death to those 
 entitled; this characteristic being what always makes the action 
 quite different from a common-law action for personal injury. 
 Even where there is no pecuniary limit there may be other re- 
 strictions. Thus in a Pennsylvania case of death by maritime 
 tort through collision, it appeared that the State constitution 
 had removed the pecuniary limit, but that an act of Congress 
 limited responsibility in such cases to the interest of the owner 
 in the vessel; it was held that this limitation of liability must be 
 enforced in the courts of the State.' 
 
 • Loughin v. McCauUey, 186 Pa. 517; 48 L. R. A. 33; 
 
CHAPTER XV. 
 
 TOETS ATFECTING RIGHTS OF PROPERTY AND CONTRACT. 
 
 Conversion. — Among the different common-law actions de- 
 veloped through case, out of trespass, two of the most important 
 were assumpsit and trover, the former being gradually made to 
 apply to all cases of simple contract, the latter to the trial of 
 disputed questions of property in chattels. The name of trover 
 came from the allegation that the defendant found the goods in 
 question, and converted them to his own use. The allegation 
 of finding soon became a mere fiction, the gist of the action be- 
 came the conversion, and such it remains. 
 
 It is the object of the plaintiff in an action for conversion to 
 obtain not the thing itself, nor damages for injury to the thing, 
 but damages for taking it from him, which generally must be 
 the value of the property. Ordinarily the judgment in the action 
 is an assessment of the value of the goods, and the satisfaction 
 of the judgment is very like the payment of the price upon a sale, 
 and in consequence vests the property in the defendant.' As to 
 what acts constitute conversion, who may bring the action, and 
 when, before bringing it, demand for and refusal to return the 
 property are necessary, it is impossible here to go into details; 
 but it may be said generally that the plaintiff must show prop- 
 erty, general or special, or actual possession, or the right to 
 immediate possession; that the action cannot be maintained 
 without proof that the defendant either did some positive wrong- 
 ful act with the intention to appropriate -the property to himself, 
 or to deprive the rightful owner of it, or has destroyed the prop- 
 erty; ^ and that when defendant's original possession was lawful, 
 
 ' Elliott V. Hayden, 104 Mass. 180; Thayer v. Murray, 73 N. Y. 305; 
 Brinsmead v. Harrison, L. R. 6 C. P. 584. 
 ' Spooner v. Holmes, 102 Mass. 503. 
 
184 ELEMENTS OF THE LAW OP DAMAGES. 
 
 it is generally necessary to make demand before bringing suit. 
 Keeping these general principles in view, it will be found that the 
 measure of damages depends upon the extent of pecuniary in- 
 jury produced by the conversion, whatever it may be. The 
 form of this action is important; it is essentially one in tort, to 
 recover the value of the property converted. Trespass is also 
 an action of tort, but does not depend upon conversion or imply 
 change of title. Again, trespass for carrying off goods is a well- 
 recognized form of action. In trover the goods may also have 
 been carried off; but it is not at all necessary. They may have 
 been merely sold to a stranger. On the other hand, there may 
 often be a choice between the action of trover and an action of 
 contract (formerly assumpsit), and the measure of da,mages will 
 not always be the same. Thus in an action for money had and 
 received, the plaintiff is always restricted by the bonds of the irnr- 
 plied agreement, but in trover his damages are measured by the 
 value of the thing lost.' Exemplary damages, in an action for 
 money had and received, could not be recovered. In trover they 
 seem to be infrequently allowed, but on principle the jury should 
 be allowed to give them.^ Finally, in certain jurisdictions, in 
 actions for the conversion of securities of fluctuating value, the 
 plaintiff recovers in an action of conversion a higher value than 
 that at the time of conversion. This is an exceptional rule, 
 in conflict with that generally applied, but its existence is an 
 illustration of the fact that the form of an action cannot be 
 disregarded. For conversion of personal property, therefore, re- 
 sulting in total loss, the measure of damages is its value with 
 interest, while, in all other cases, the most specific statement 
 that can be made is that the damages must compensate the 
 plaintiff for the total injury. 
 
 B., a swindler, contracts a bill of £109 for board and lodging 
 at an inn. While there a pair of horses, wagonette, and harness 
 arrive for B., and they are received by the innkeeper as part of 
 
 • Hunter v. Prinsep, 10 East, 378, 391. Cf. Frothingham v. Moore, 
 45 N. H. 545; Co£fey v. Nat'l Bank of Mo., 46 Mo. 140; Stems v. Low, 
 2 Hill, 132. 
 
 ' Dennis v. Barber, 6 S. & R. 420; Thayer v. McManis, 4 Watts, 418; 
 Taylor v. Morgan, 3 Watts, 333. 
 
TORTS AFFECTING EIGHTS OF PROPERTY AND CONTRACT. 185 
 
 B.'s property. In fact B. had bought the horses from the plain- 
 tiff, on the terms that if not paid for they should be returned to 
 the seller. B. has not paid, and at the time of his leaving the inn 
 there is a bill of £22 10s. for their keep. Plaintiff now demands 
 the property, tendering a sum of £20 for the keep of the horses; 
 but the innkeeper refuses to give anything up. The innkeeper 
 then sells the horses for £73, but retains possession of the wagon- 
 ette and harness. The sale is an act of conversion, because an 
 innkeeper's lien only authorizes him to detain, not to sell, and 
 plaintiff is entitled to judgment against him for £73 and costs.' 
 When it is said that the measure of damages for conversion 
 is the value of the property, the rule is limited to the case of total 
 loss. It must be observed that while the conversion if estabUshed 
 is usually total, the resulting loss depends altogether on the cir- 
 cumstances of the case. The property may be returned to the 
 owner and accepted by him ; it may meantime have increased or 
 diminished in value; it may have been increased in value by the 
 labor of the defendant ; it may have been so intermingled with 
 the property of the defendant, as to, be inseparable or indis- 
 tinguishable from it; consequential damages may have ensued. 
 The result is that the rule in trover, as usually laid down, the 
 value of the property at the time and place of conversion, with 
 interest, is not a fixed rule of law. 
 
 Rule 39. 
 
 Illustrations. 
 
 (a) In an action for conversion of a stock of goods the jury is 
 instructed that the plaintiff is entitled to recover the retail value of 
 the goods taken, with interest. This is error for which the judg- 
 ment will be reversed; the measure is the market value, or what 
 it would have cost to replace the goods in the market.^ 
 
 (6) The action is for conspiracy to defraud by means of pur- 
 chase on credit and conversion. The measure of damages is not 
 the contract price, but the value of the goods at the time and 
 place of conversion with interest.* 
 
 • Mulliner v. Florence, 3 Q. B. D. 484. 
 
 ' Wehle V. Haviland, 69 N. Y. 448. 
 
 ' John V. FarweU Co. v. Wolf, 96 Wis. 10; 37 L. R. A. 138. 
 
186 ELEMENTS OP THE LAW OF DAMAGES. 
 
 (c) A horse is stolen from R. in Georgia, taken by the thief to 
 Alabama, and there sold to H. R. recovers the horse. In an action 
 against H. he may recover for deterioration in the horse while in 
 his possession, but not for travelUng expenses to Alabama, H. 
 having had nothing to do with the removal of the horse.' 
 
 (d) T. hires L.'s horse to go to M. and back for a stipulated 
 price, but goes to a different place. This is a conversion, and the 
 hirer is Uable for any damage occurring, though owing to the fault 
 of the horse.^ 
 
 (e) B. converts to his own use A.'s certificate of stock, but can 
 make no use of it, nor of the stock represented by it, because it 
 cannot be transferred without A.'s endorsement. The measure of 
 damages is not the market value of the stock. ^ 
 
 (/) L. cuts down B.'s trees and tows them to his saw-mill. In 
 an action for the conversion, B. recovers the value of the trees as 
 cut, and not their value as increased by the transportation.* 
 
 (g) The action is brought against an innocent piu-chaser from 
 a trespasser who h^s inadvertently cut trees on property adjoining 
 his own but belonging to plaintiff. The rule is the same.^ 
 
 (h) F. contracts with R. for the building of a vessel, and makes 
 advances from time to time, R. giving as security a bill of sale of the 
 ship when completed. A third person converts the ship in process 
 of construction and finishes the work. The measure of damages 
 is the value of the ship at the time of the conversion, i. e., the value 
 as contemplated, less the money required after the date of the con- 
 version to complete, and not her value at a subsequent time; nor 
 can there be any recovery for the freight which F. might have 
 earned with her." 
 
 (i) A., without wrongful intent, mines coal on B.'s land. The 
 measure of damages is not the value of the coal as converted, but 
 this value less the cost of the labor of mining it, together with any 
 consequential damage in mining.' 
 
 ' Renfro v. Hughes, 69 Ala. 681. 
 
 ' Lucas V. TrunbuU, 15 Gray, 306. 
 
 ' Daggett V. Davis, 53 Mich. 35. 
 
 * Beede v. Lamprey, 64 N. H. 510. 
 
 » White V. Yawkey, 108 Ala. 270; 32 L. R. A. 199 
 
 " Reid V. Fairbanks, 13 C. B. 692. 
 •* ' Forsyth v. Wells, 41 Pa. St. 291 ; ace. Livingstone v. Rawyards Coal 
 Co., 5 App. Cas. 25. Cf. United Merthyr Collieries Co., L. R. 15 Eq. 46; 
 Keyes v. Pittsburg & W. Coal Co., 58 Oh. St. 246; 41 L. R. A. 681. This 
 
TORTS AFFECTING RIGHTS OF PROPERTY AND CONTRACT. 187 
 
 In the case of property like notes and judgments, the value 
 of which may fluctuate from time to time, all the evidence bear- 
 ing on value is usually admissible, but it must bear on value at 
 the time of conversion. 
 
 Illustrations. 
 
 (a) The property converted is a judgment illegally discharged 
 for a small amount. At the time of the conversion the judgment 
 debtors were insolvent but subsequently became solvent. Both 
 facts are admissible; but for the conversion, the owner of the judg- 
 ment might at the time of conversion have obtained a greater 
 amount.' 
 
 (6) The property converted is a promissory note; the conver- 
 sion took place some months before imaturity. Evidence of the 
 financial condition of the maker offered by defendant, having no 
 tendency to show value at the time of conversion, is inadmissible.^ 
 
 When market value is resorted to, it is not necessarily the 
 market value at the place of conversion. In actions against 
 common carriers the time and place fixed for delivery governs, 
 and the New York Court of Appeals has recently, in a well- 
 considered opinion, extended this exception to actions against 
 a stranger for conversion, e?i route, of property in possession of 
 a carrier for transportation, holding that the damages are not 
 limited to the value at the place of conversion, or nearest market, 
 but may be measured by its value at destination less expenses.' 
 
 It is in connection with the action for conversion that what is 
 known as the rule of "higher intermediate value "may be most 
 conveniently explained. This rule has derived most of its im- 
 portance from stock transactions, but is quite as applicable in 
 detinue and replevin, in actions for refusal to transfer or deliver 
 stocks, and in actions for failure to deliver goods sold when the 
 
 is now the generally accepted rule, though there is much confusion in the 
 cases, as the early rule of the common law was that the plaintiff could 
 recover the entire value. Martin v. Porter, 6 M. & W. 351. The old rule 
 is still adhered to in some jurisdictions. 
 
 » Langford v. Rivinus, 75 Fed. 959; 33 L. R. A. 250. 
 
 ' Kellogg V. Tompson, 142 Mass. 76. 
 
 » Wallingford v. ICaiser, 191 N. Y. 392; 15 L. R. A. (n. s.) 1126. 
 
188 KLEMKNTS OF THE LAW OF DAMAGES. 
 
 price has been paid in advance. The rule has been stated to be 
 that in any action where the plaintiff has been deprived by the 
 vsTongful act of the defendant of property of fluctuating value, 
 his measure of damages should be the highest value he could 
 have obtained for it between the time at which he was deprived 
 of it, and the time of the trial. The rule was first clearly laid 
 down in Romaine v. Allen/ but the New York courts by subse- 
 quent decisions ^ have restricted it, so that in that State the 
 highest value is allowed only between the time of the injury and 
 the time when the plaintiff by due diligence might have replaced 
 himself in the market. So far as stock transactions are con- 
 cerned, the New York rule has been adopted by the Supreme 
 Court of the United States.' 
 
 As it is the object of this hand-book only to give the general 
 principles of the subject, it may be enough here to say that the 
 question of the time at which the value of the property of which 
 the owner has been deprived by a tort should be estimated is 
 independent of the form of action, and that whenever it appears 
 with sufficient certainty that he would have derived a larger 
 profit from the use than the interest on the money value, e. g., 
 when he had contracted to sell it at an advance, he is entitled 
 to this gain in addition to the value.* In such cases the ques- 
 tion resolves itself into one of certainty of proof. Thus in a 
 leading English case^ the property converted consisted of cham- 
 pagne aheady sold at an advance, and the advance was allowed 
 for. This was not on the ground of the advance being special 
 damages, or damages of which the defendant had received 
 notice, but that this was the actual value of which the conver- 
 sion had deprived the plaintiff. 
 
 The reason why in the case of stock contracts a special rule 
 has been introduced is chiefly this. Other articles of property 
 
 ' 26 N. Y. 309. 
 ^ > Baker v. Drake, 53 N. Y. 211; 66 N. Y. 518; Wright v. Bank of the 
 Metropolis, 110 N. Y. 237, 246. 
 
 ^ > GalUgher v. Jones, 129 U. S. 193. Cf. Michael v. Hart, [1901] 
 2 K. B. 867; [1902] 1 id. 482. 
 
 * Suydam v. Jenkins, 3 Sandf. 641. 
 
 » France v. Gaudet, L. R. 6 Q. B. 199. 
 
TOETS AFFECTING RIGHTS OF PROPERTY AND CONTRACT. 189 
 
 are supposed to have a more or less fixed market value ; stocks, 
 on the contrary, are usually bought because it is expected that 
 they will rise in value, and one of the commonest forms of stock 
 contracts is that in which a broker "carries " stocks for his 
 principal, who pays down a part of the price called a "margin" 
 which he is to keep good if the stock falls, as requested by the 
 broker. Now obviously in this case if the broker converts the 
 stock, the principal loses not only the stock but the chance of 
 its rising. If this chance is converted into a certainty by a sub- 
 sequent rise, should he be confined to the original value? If 
 so, he not merely loses his chance, but the broker has by his 
 wrong deprived him of the very profit which he was looking for. 
 Hence it is said to be only reasonable to give him as damages 
 more than the market value at the time of the conversion. As 
 a prudent man, he will, on notice of the conversion, replace him- 
 self by making a new contract; hence the rule as now estab- 
 lished in New York. 
 
 Rule. 
 
 In actions for the conversion of stocks, the measure of damages 
 is the highest market valve between the time of the injury 
 and the time when the plaintiff might with due diligence 
 have replaced himself in the market. 
 
 The rule is open to several grave objections. 1. Articles 
 other than stocks, even the chief necessities of life, fluctuate 
 widely in value. 2. They are also constantly bought legitimately 
 for speculation. 3. No one can say that the plaintiff, as a pru- 
 dent man, having lost his stock by the wrongful act of his agent, 
 would immediately engage in another speculation of the same 
 sort. 4. There is no certainty that he would, had the conver- 
 sion not taken place, have made a profit, for he might have re- 
 tained the stock until it had fallen again. 
 
 In most jurisdictions the rule is not recognized. Its existence 
 can perhaps best be explained by saying that in its present form 
 the rule of higher intermediate value. represents the efforts of 
 the courts in the direction of minimizing the effects of what was 
 once a rule still more opposed to principle. 
 
190 ELEMENTS OP THE LAW OF DAMAGES. 
 
 Recovery of Specific Personal Property. — In the 
 action for conversion, as in that of trespass, the plaintiff sues 
 solely to recover damages for the wrong done. For the recovery 
 of specific personal property the common law gave two forms of 
 action, detinue and replevin. Both these are now generally re- 
 placed by a statutory action, which answers all the purposes 
 formerly attained by either. 
 
 As the action of trover was founded upon the conversion, and 
 judgment and satisfaction changed the title, the action of detinue 
 was founded upon the detention of goods. The object was to 
 recover the thing itself and damages for its detention. As the 
 action, however, passed out of general use before the rules of 
 compensation had been carefully examined, and while the whole 
 matter of damages was more in the discretion of the jury than 
 it now is,' it is unnecessary to consider it here, further than to 
 observe that it had originally nothing whatever to do with 
 replevin, a form of action of very remote antiquity. 
 
 Replevin is treated by English writerfe in connection with the 
 subject of distress, and though the connection has been in this 
 country so completely severed that we regard it now as an entirely 
 independent remedy, it was no doubt introduced to settle the 
 rights of parties, one of whom had distrained property of the 
 other. The two primitive forms of distress were distress for 
 rent, and of cattle damage feasant, and it is highly probable that 
 distress in general, which is merely the taking into possession 
 of the property of another, for the purpose of making him 
 comply with some demand, is a survival from times when courts 
 of justice had no existence.^ Without, however, going back to 
 so remote a period we know that in the Middle Ages the seizure 
 of the tenant's goods, and especially his cattle, which were his 
 principal wealth, by the landlord, was a common offence, and 
 was productive of great injustice and oppression. To meet it 
 the writ of replevin was introduced. The word itself, replegiari, 
 shows that originally there was some primary pledge; this 
 pledge was the distress. The landlord having taken the tenant's 
 
 » Cf. Williams v. Archer, 5 C. B. 318; Freer v. Cowles, 44 Ala. 314. 
 " Longfield on Distress, 2; Maine's Early History of Institutions, 
 chs. ix. and x. 
 
TORTS AFFECTING RIGHTS OF PROPERTY AND CONTRACT. 191 
 
 property as a pledge or security, the law, intervening, author- 
 ized the sheriff to deliver back the property so taken, upon the 
 owner's giving in his turn security that he would either make 
 out the justice of the taking, or return the goods.' In process 
 of time the replevin was severed from the distress and was ex- 
 tended to every sort of tortious taking, and we have as the result 
 an action which is begun by taking the property, as to which 
 the dispute has arisen, out of the hands of the defendant, and 
 then giving security that the plaintiff will make his claim good, 
 or return the property. The plaintiff's object is to obtain dam- 
 ages for the taking and detention. The defendant's is to re- 
 cover the property, and also to get damages occasioned by the 
 replevin itself. The defendant's demand is founded on the legal 
 process sued out and prosecuted by the plaintiff.' 
 
 It is evident that replevin suits are founded wholly upon the 
 idea of a tortious taking and detention, and that their use as a 
 means of trying title to chattels is modern. At the time of its 
 introduction, as a means of mitigating the severity of distraints, 
 no one but the real owner of the property had any motive for 
 suing out the writ. At present the action is often a mere means of 
 trying title, in which both parties demand the property itself, to- 
 gether with damages for its detention. The defendant has two 
 remedies, one in the original action, and one on the bond given 
 by the plaintiff, though, of course, he cannot recover twice for the 
 same elements of damages. The principles which govern the 
 allowance of damages are substantially the same on one side or 
 the other. Usually if the plaintiff recovers, as he has taken pos- 
 session of the property, he cannot recover its value; but only 
 damages for its detention. When, however, the property has 
 been put out of the sheriff's reach, he recovers its value in addi- 
 tion, at the time of the demand made by the sheriff ; in some juris- 
 dictions, as in trover, the highest intermediate value.' On the 
 other hand, if the defendant prevails, and the property cannot 
 be found, or where, as in some jurisdictions, the successful de- 
 fendant is allowed to elect to take the value, instead of the goods, 
 
 ' GUbert, p. 58. 
 
 ' Bruce v. Learned, 4 Mass. 614. 
 
 ' TuUy V. Harloe, 35 Cal. 302. 
 
192 ELKMENTS OP THE LAW OP DAMAGES. 
 
 and he does so, he also is entitled to judgment for the value. As 
 to the time at which the value should be assessed, there is much 
 uncertainty in the cases. If the property cannot be found, the 
 value is taken at the time of the demand under the writ of resti- 
 tution. As a general rule, as in trover, any increase of value 
 caused by the labor of the defeated party is not included, though, 
 if the taking is wilful, the rule is said to be the other way.* 
 
 This distinction between cases of innocent and wilful taking 
 need not be discussed here, because where it exists it is purely 
 arbitrary, and is founded on a notion of liabiUty wholly at vari- 
 ance with that which underlies the common-law principles of 
 damages. Of course it is independent of the form of action; if 
 compensation is to vary according to the state of mind of the 
 defendant, it ought to make no difference whether the suit is 
 trespass, trover, or replevin.^ 
 
 Damages for the detention are assessed to the end of the time 
 during which it lasted, i. e., down to the verdict. When the prop- 
 erty is returned, the owner recovers the value of the use during 
 detention, but when the successful party recovers the value in- 
 stead of the property, he recovers in some jurisdictions interest 
 on the value. When the property is held for consumption or 
 sale, he recovers interest. 
 
 Rule. 
 
 49. In actions for the recovery of specific personal property, the 
 prevailing party is entitled to judgment for the property 
 itself, or its value, together with damages for iis detention, 
 including either the value of its use, or interest. 
 
 Illustrations. 
 
 (a) A sheriff having levied on goods, A. replevies them, but fails 
 in proving title. The sheriff, having the right by statute, elects to 
 take judgment for the value of the goods. The value which he 
 recovers is that at the time of the replevin.' 
 
 ' Heard v. James, 49 Miss. 236. 
 
 2 See further Tuttle v. "White, 46 Mich. 485; United States v. St. An- 
 thony R. R. Co., 192 U. S. 524. 
 
 " Suydam v. Jenkins, 3 Sandf. 641. This illustration is given because, 
 
TORTS AFFECTING EIGHTS OF PROPERTY AND CONTRACT. 193 
 
 (6) Action is brought to recover possession of a horse. The 
 horse has been from the time of the replevin to the time of trial in 
 the possession of plaintiff, but the title is found to be in defendant. 
 The value of the horse is $75, and the value of its use during deten- 
 tion, S75. For the same period legal interest would have been 
 $15.31. The measure of damages is the value of the use.' 
 
 (c) The inventor of a new patented machine for the purpose of 
 inserting and fastening rivets in the joints of umbrella ribs and 
 stretchers, desiring to introduce it into general use delivers a num- 
 ber of them to the defendant, giving him an option to return or pur- 
 chase. He neglects to return, and does not purchase. The measure 
 of damages is interest on the value as found by the jury.^ 
 
 Actions against Officers. — As a general rule all ministe- 
 rial officers are liable for any damages caused by their negligence 
 or malfeasance; but there are two different species of liability. 
 First, the officer who, in the course of executing process, unwar- 
 rantably injures any one in his, person or property is liable like 
 any other trespasser, and the measure of damages will be usually 
 the same as in an ordinary case of trespass. In cases of this sort 
 the rule of exemplary damages is often stringently applied. 
 Second, the officer who undertakes to execute process at the re- 
 quest of a party is liable (in an action on the case) for any loss 
 suffered through his negligence or wrong. In these cases the 
 actual pecuniary injury is the measure. A third species of action 
 exists for this kind of injury against the sureties on the official 
 bond of the officer, and generally the measure of damages is not 
 affected by the question whether it is brought against the officer 
 or upon the bond. 
 
 With reference to the measure of damages there is a difference 
 between mesne process, or such process as is intended to provide 
 security in case the plaintiff prevails, and final process. When a 
 
 though the question of the time at which the value is to be taken in replevin 
 is not by any means in a settled condition, the learned opinion of Duer, J,, 
 going over the .whole ground of the measure of damages in torts affecting 
 property interests, deserves careful study. 
 
 ' Allen V. Fox, 51 N. Y. 562. 
 
 ' Redmond v. Am. Mfg. Co., 121 N. Y. 415. 
 
 13 
 
194 ELEMENTS OF THE LAW OF DAMAGES. 
 
 sheriff is directed to arrest or attach on mesne process, the claim 
 is evidently quite undetermined ; but when final process is issued 
 it is to satisfy a judgment, and the failure of the officer to execute, 
 provided the defendant has property on which levy could have 
 been made, necessarily produces a total loss. It has been argued 
 that the action against the officer ought not to be maintained if 
 the judgment is still collectible ; but the answer is that if this were 
 true the second execution would admit of the same defence, and 
 so on ad infinitum.^ The true rule is that the officer can only 
 relieve himself of his liability by showing that the defendant in 
 execution had no property on which levy could be made, or some 
 other matter of justification. In cases of mesne process the ques- 
 tion may arise during the suit, or at its termination. The plain- 
 tiff, having recovered judgment, finds that there is no legal 
 attachment of the property which he supposed to be attached and 
 which would have been his security. Here all the circumstances 
 must be inquired into, and if there has been a considerable lapse 
 of time between the issue of the writ and the judgment, there are 
 usually many circumstances to be inquired into ; but the actual 
 injury sustained is still the real measure, and if it appear that but 
 for the action of the officer the plaintiff would have had his debt, 
 he recovers the total amount. If the question arises before the 
 termination of the suit, the fact of liability must be established, 
 as also the fact that but for the officer's neglect the plaintiff would 
 have had security. At the present time arrest and imprisonment 
 as a security for debt have fallen so much into disuse that it is 
 hardly necessary to speak of them. Formerly it was often a diffi- 
 cult question to say whether, in cases of escape or rescue, the 
 plaintiff had lost anything or not ; now the question turns upon 
 the value to the plaintiff of the officer's taking property into his 
 possession as security. The defence may in all these cases re- 
 duce the damages by showing that the original liability did not 
 exist, that with all proper diligence the officer could not levy or 
 attach, that the defendant was insolvent, that the plaintiff him- 
 self was the cause of the failure, etc. 
 
 ' Ledyard v. .Jones, 3 Seld. 550. 
 
torts affecting rights of property and contract. 195 
 
 Rules 39-44. 
 
 Illustrations. 
 
 (a) OflScers enter B.'s house with violence and levy on execu- 
 tion without a legal warrant. B. pays under protest £20 as a bonus, 
 and £200, the amount on the writ. A jury gives as damages the 
 amount so paid and £500 more. This verdict is not excessive.* 
 
 (fi) S., an oflBcer, levies upon certain horses claimed by A., under 
 an execution against a third party. It appears that the latter pur- 
 chased the horses from A. under an arrangement by which they 
 were to remain A.'s property till fully paid for. Part payment had 
 been made. The court directs the jury that if they find for the plain- 
 tiff they are to give him "the value of the property taken and in- 
 terest," and such further amount as they "think him entitled to 
 demand," if any. This instruction is wrong. The plaintiff can only 
 recover an amount commensurate with his interest in the property, 
 and there are no facts calUng for exemplary damages.^ 
 
 (c) An officer makes a levy on land which turns out to be void. 
 The total value of the land is $650, but it is mortgaged for $516.34. 
 In an action against the officer the measure of damages is the dif- 
 ference between the two sums.' 
 
 (d) An officer fails to attach. The suit having terminated, the 
 measure of damages is the amount of the judgment, provided the 
 plaintiff obtained one, or so much thereof as the value of the prop- 
 erty would have been sufficient to satisfy.* 
 
 (e) A. holds B.'s note for $113.41, and brings suit directing an 
 officer to attach. B. has at the time property which might be at- 
 tached, but subsequently becomes insolvent. The officer makes no 
 attachment, but gets B. to send $50 in part payment. A.'s measure 
 of damages against the officer is the balance ascertained to be due 
 on the note.' 
 
 (J) A sheriff makes a false return of nulla bona. The measure 
 of damages is the amount directed by the execution to be collected." 
 
 ' Duke of Brunswick v. Slowman, 8 C. B. 317. 
 
 ' Rose V. Story, 1 Pa. St. 190. See further, Davis v. Bliss, 187 N. Y. 77; 
 10 L. R. A. (n. s.) 458. 
 
 ' Parker v. Peabody, 56 Vt. 221. 
 * Perkins v. Pitman, 34 N. H. 261. 
 » Smith V. Judkins, 60 N. H. 127. 
 ' Bacon v. Cropsey, 3 Seld. 195. 
 
196 ELEMENTS OF THE LAW OF DAMAGES. 
 
 (g) Action on sheriff's bond, the breach alleged being failure 
 to levy and return an attachment. There is no averment of actual 
 damage. The gist of the action being damages, nominal damages 
 are not recoverable, and the declaration is demurrable.' 
 
 Interference with Real Property. — Where rights of 
 ownership in real property are infringed, it may be laid down 
 without exception that any interference with them will give an 
 action and a right to nominal damages, even if no physical dam- 
 age be caused. Originally, whenever the plaintiff could show 
 possession of the soil itself, the action was trespass. If he could 
 only show ovimership of an incorporeal hereditament (i. e., of an 
 exclusive right to a limited user of the land in a particular way, 
 as by a right of way over it), he was entitled to an action on the 
 case. The distinctions between these forms of action having 
 been swept away by the modern systems of pleading, his right 
 is practically the same in both cases. It rests on the ground that 
 by continued adverse user or possession, the defendant could 
 after a certain lapse of time acquire title to the property.* But an 
 action on the case would lie, not merely for damage to incorporeal 
 hereditaments, but for any disturbance of the enjoyment of real 
 property not by direct entry. Of such actions on the case, that 
 for nuisance is the most clearly defined division. Another very 
 ancient action by means of which interference with real property 
 is redressed is waste, in which the person entitled to the reversion 
 recovers damages against the temporary possessor, as, for in- 
 stance, a life-tenant. In all these cases, the nature of the action 
 has little if anything to do with the question df damages. The 
 plaintiff recovers (1) according to the nature of his right; (2) ac- 
 cording to the permanent or temporary character of the injury; 
 (3) according to the actual elements of injury proved. Circum- 
 stances of aggravation or mitigation may affect the result, and 
 exemplary damages in extreme cases are given. 
 
 In all cases of interference with real property, before the meas- 
 ure of damages can be ascertained, a preliminary question 
 
 » Beck & G. H. Co. v. Knight, 121 Ga. 287; 3 L. R. A. (n. s.) 420. 
 ' Williams v. Esling, 4 Barr, 486; Dougherty v. Stepp, 1 Dev. & Bat. 
 L. 371. 
 
TORTS AFFECTING RIGHTS OF PROPERTY AND CONTRACT. 197 
 
 arises as to whether the cause of action is such that the damages 
 are to be assessed once for all, or whether it is such that it gives 
 rise to successive actions. In the case of nuisances it is well set- 
 tled that they are continuing injuries, and give rise to actions 
 from day to day, until they are abated. Nevertheless, when, as 
 in the case of erection of public works, they cannot be abated, 
 the injury is often treated as permanent, and damages assessed 
 once for all. Owing to the great variety of rights in real 
 property, and also to the fact that in many cases the question 
 arises not from a single invasion of right, but from a conflict 
 between the inconsistent rights of adjoining owners, the courts 
 have only been able to lay down rules which by their extreme 
 generality illustrate clearly the difficulty of formulating specific 
 rules. Four points are to be noticed : 1. The constant resort 
 to the rule of avoidable consequences. 2. The fact that there 
 may be a recovery (a) for a permanent diminution of value, or 
 (6) for a temporary loss of the use. 3. That there cannot be a 
 recovery for both at the same time. 4. That the extent of 
 plaintiff's title is always important. 
 
 Rule. 
 
 50. For interference with real property the measure of com- 
 pensation is the extent of the injury to the plaintiffs 
 right. If the injury is of a permanent nature, the meas- 
 ure is the diminution of the value of the property; other- 
 wise, the diminution in rental value. Whenever the 
 expense of making the injury good is less than the 
 diminution in value, such expense becomes the measure 
 of damages.^ 
 
 Illustrations. 
 
 (a) The action is by a landlord of demised premises for injury 
 to his reversionary interests in pulling down a house. The measure 
 of damages is the diminution in the market value of the property.^ 
 
 (fi) The action is for the destruction of a dam. The damages 
 include the value of the water privilege from the time of injury 
 
 ' This results from the rule of avoidable consequences, discussed in 
 Chap. VI. 
 
 ' Hosking v. Phillips, 3 Ex. 166. 
 
198 ELEMENTS OP THE LAW OF DAMAGES. 
 
 to the time when with reasonable diligence it might have been 
 rebuilt.' 
 
 (e) The action is for wrongful appropriation of water for power 
 from plaintiff's dam. The owner has no facilities for using the 
 power, while the defendant has in good faith constructed a canal 
 for the purpose. The measure of damages is not the rental actu- 
 ally collected by defendant for water power wrongfully appropri- 
 ated, but the net market value of the use of the power taken for six 
 years, with interest.^ 
 
 (d) The injury is from the use of adjoining premises as an ice- 
 house. Plaintiffs prove loss of rental value to time of trial, and 
 also permanent depreciation. The admission of evidence on the 
 latter head is error. The only possible head of damage in addition 
 to the first is that of the amount necessary for such repairs as would 
 guard against a recurrence of this injury.' 
 
 (e) The injury is by flowage. The measure of damages is the 
 value of the standing grass totally destroyed, and the depreciation 
 in the remainder.* 
 
 (/) Property-owners have the right to lateral support from the 
 adjoining land, for the soil in its natural state; the right does not 
 extend to buildings. A. builds a house on his own land within two 
 feet of the boundary line. The adjoining owner digs so deep into 
 his own land as to endanger the house, and A. is obliged to leave 
 it and take it down. The measure of damages is only the loss caused 
 by the falling of his natural soil into the pit.* 
 
 (g) A telegraph company appropriates to its use by virtue of 
 eminent domain a part of the right of way of a railroad com- 
 pany. The measure of damages is the amount of decrease in the 
 value of the use of the right of way for railroad purposes, resulting 
 from the easement taken.' 
 
 ' Whipple v.Wanskuck Co., 12 R. 1. 321 (rule of avoidable consequences). 
 
 ' Green Bay & M. C. Co. v. Kaukauna Water Power Co., 112 Wis. 323; 
 62 L. R. A. 579. 
 
 ' Barrick v. Sohifferdecker, 123 N. Y. 62. 
 
 * Folsom V. Apple R. L. D. Co., 41 Wis. 602; ace. Fremont, Elkhom, & 
 M. V. R. R. Co. V. Harlin (deposit of clay and sand), 50 Neb. 698; 36 
 L. R. A. 417. 
 
 ' Thurston v. Hancock, 12 Mass. 220; ace. Gilmore v. DriscoU, 122 Mass. 
 199. 
 
 » Cleveland, C. C. & St. L. Ry. Co. v. Ohio Postal Telegraph C. Co., 68 
 Oh. St. 306; 62 L. R. A. 941. 
 
TORTS AFFECTING RIGHTS OF PROPERTY AND CONTRACT. 199, 
 
 {h) A surface owner is damaged by a mining operation. The 
 measure of damages is the actual loss to land and buildings 
 through the removal of support, and not the difference in market 
 value before and after injury.' 
 
 (i) The damage is to the alluvial rights of a riparian owner 
 of a sand-bank between the high and low water mark of a river, 
 through a change in the current caused by the defendant. The 
 owner recovers both for the bank carried away and for "the de- 
 struction of the habit of the farm to gather future sand." ^ 
 
 When growing trees are injured or destroyed, the true measure 
 of damages must vary with the circumstances. If the trees con- 
 stitute timber ready for the market, the loss may be measured 
 exactly by the value of the timber; if they form an orchard, the 
 loss is something very different; so, again, if they are part of a 
 nursery garden. The owner is in any case entitled to the value 
 of the property lost; he may be also entitled to recovery for a 
 diminution in the value of the freehold ; again, cases may arise 
 when the difference in the value of the land before and after the 
 injury may be nothing; even in this case he must be entitled to 
 recover something, for it is no answer for a wrongdoer to say : I 
 may have destroyed your trees, but your whole property will sell 
 for as much as before. In such cases the true rule is here, as 
 elsewhere, what is the fair value of the thing destroyed. As is 
 said in a recent case, it may be an orchard, or it may be a skating- 
 rink; in either case it represents an investment of money and 
 labor, for which compensation must be given. The destruction 
 of a house by fire often leaves the freehold for purposes of sale as 
 valuable as before ; but what this shows is not that there are no 
 damages, but that the rule that the damages are measured by the 
 difference in value of the premises before and after is not appli- 
 cable. Whatever confusion is found in the cases probably arises 
 from attempts to apply an a priori rule of damages adapted only 
 to an inelastic form of action.' 
 
 ' Noonan v. Pardee, 200 Pa. 474; 55 L. R. A. 410. 
 " Freeland v. Penn. R. R. Co., 197 Pa. 529; 58 L. R. A. 206. 
 ' Louisville & Nashville R. R. Co. v. Beeler (Ky.), 11 L. R. A. (n. s.) 
 930; DwightiJ.Elmira, C.&N.R.Co., 132N.Y.199; Disbrow v. Westchester 
 
200 ELEMENTS OF THE LAW OF DAMAGES. 
 
 Nuisances. — A nuisance is a peculiar species of interfer- 
 ence with the enjoyment of real property rights, which consists 
 in the user of property otherwise lawful, but in such a way as to 
 diminish the value of the property of others or injuriously affect 
 them in some unlawful way. The measure of damages is af- 
 fected by the fact that nuisances may be abated and enjoined, 
 and are therefore not regarded in law as permanent, but as con- 
 tinuing wrongs for which an action lies de die in diem. The 
 pecuUarity of an action to recover damages for a nuisance is that 
 some special damage to the plaintiff is the gist of the action; the 
 general injury created by the nuisance, and which is ground for 
 an indictment, does not concern him at all. In all cases of nui- 
 sance the plaintiff must substantiate three things: 1. He must 
 show a particular injury to himself, beyond that suffered by the 
 public. 2. The injury must not be remote. 3. It must be sub- 
 stantial, not fleeting or evanescent.' In Wesson v. Washburn 
 Iron Co.^ the law in regard to nuisances is thus laid down by 
 Bigelow, C. J. : " When the wrongful act is of itself a disturbance 
 or obstruction only to the exercise of a common and public right, 
 the sole remedy is by public prosecution unless special damage is 
 caused to individuals. In such case the act of itself does no 
 wrong to individuals distinct from that done to the whole com- 
 munity. But when the alleged nuisance would constitute a pri- 
 vate wrong by injuring property or health, or creating personal 
 inconvenience and annoyance, for which an action might be 
 maintained in favor of a person injured, it is none the less ac- 
 tionable because the wrong is committed in a manner and under 
 circumstances which would render the guilty party liable to in- 
 dictment for a common nuisance." ' 
 
 It is sometimes said to be a rule that to recover damages for a 
 nuisance the damages must be direct, and not consequential. 
 But this is merely an illustration of a loose use of the term "con- 
 Hardwood Co., 164 id. 415; Teller v. Bay & River Dredging Co., 151 Cal. 
 209; 12 L. R. A. (n. s.) 267. 
 
 ' Benjamin v. Storr, L. R. 9 C. P. 400, 407; Fritz v. Hobson, 14 Ch. D. 
 542, 566. 
 
 > 13 All. 95. 
 
 " Page 103. 
 
TORTS AFFECTING RIGHTS OF PROPERTY AND CONTRACT. 201 
 
 sequential," as if it had the same signification as remote ; what 
 is really meant is thait the rule of proximate cause applies, and 
 that the damages must not be remote. The rule is laid down by 
 Brett, J., in Benjamin v. Storr,' and the decision speaks for 
 itself. The plaintiff keeps a coffee-house in a narrow street, and 
 the defendants carry on business in the neighborhood in such a 
 way as to obstruct the access to the shop, and also the light and 
 air, with vans and horses. Here the direct injury is obstruction 
 of light, air, and access. But under an averment that the prem- 
 ises have been rendered " unhealthy and incommodious," plain- 
 tiff is allowed to give evidence of a stench arising from the 
 staking of the horses. Such an injury as this falls under the 
 head of recoverable, consequential damages, as distinguished 
 on the one hand from direct, and on the other from remote, 
 damages. 
 
 The question of nuisance frequently arises in cases of obstruc- 
 tion to highways. Here the obstruction may create a public 
 nuisance, for it may interfere with the common use of the high- 
 way; but the owner's right of access is something quite different 
 from this (and the same thing may be said of the whole body of 
 his rights in the use of his abutting premises in their relations to 
 the highway), and consequently, if these private rights are in- 
 fringed he suffers a particular damage.^ 
 
 Rule. 
 
 51. To maintain an action for a nuisance, the plaintiff must 
 allege and prove some special damage to himself. 
 
 Illustrations. 
 
 (o) A riparian owner, proprietor of a saw-mill, allows sawdust 
 and other refuse to fall into the water, and accumulate in masses, 
 which are carried by the stream in front of a lower owner's boat- 
 house and wharf, making the water offensive, and producing ex- 
 
 ' L. R. 9 C. P. 400, 407. 
 
 ' Fritz V. Hobson, 14 Ch. D. 542; Milhau v. Sharp, 27 N. Y. 611. 
 
202 ELEMENTS OF THE LAW OF DAMAGES. 
 
 plosions from the gas generated underneath the surface. This is 
 special damage.' 
 
 (6) A. wrongfully creates a public nuisance by obstructing a 
 public navigable creek. B., who is navigating his barges along it, 
 is prevented by this obstruction, and is compelled to convey his 
 goods overland, and thus put to trouble and expense. This is 
 special damage for which an action will lie.' 
 
 (c) A common nuisance is created by placing obstructions in a 
 highway. A person returning over the way with a loaded team is 
 compelled to go back and get to his house by another road, a dis- 
 tance of about two miles. A verdict for nominal damages will be 
 sustained.' 
 
 (d) Action for fouling a stream so as to create a nuisance. The 
 action is not founded on negligence, and therefore contributory 
 negligence is no defence. Plaintiff recovers so much of the damage 
 as was attributable to defendant.* 
 
 Rttle. 
 
 52. In an action for a nuisance, the measure of damages is 
 the total amount of injury to the date of the writ. 
 
 Illustrations. 
 
 (a) A nuisance is created by placing on the plaintiff's land 
 something which can, and ought to be removed. The plaintiff can 
 only recover damages to the date of the writ.' 
 
 (6) A railroad company erects a roundhouse near a church, and 
 interrupts the services by noise, smoke, etc. The damages include 
 the compensation for discomfort and annoyance in the use of the 
 property as a church, even though the market value be not de- 
 preciated.' 
 
 ' Booth V. RattS, 15 App. Cas. 188. 
 
 = Rose V. Miles, 4 M. & S. 101. 
 
 ' Brown v. Watson, 47 Me. 161. 
 
 '■ Bowman v. Humphrey, 132 la. 234; 6 L. R. A. (n. s.) 1111. 
 
 " Cumberland & Oxford Canal Co. v. Hitchings, 65 Me. 140. 
 
 " Bait. & P. R. R. Co. V. Fifth Baptist Church, 108 U. S. 317, 335. In 
 cases of this sort the liability of the company arises from its having a dis- 
 cretion as to where to place its building. If its charter authorizes the con- 
 struction of such a work at that precise place, then it would be damnum 
 absque injuria. Terminal Co. v. Jacobs, 109 Tenn. 727; 61 L. R. A. 188. 
 
TORTS AFFECTING EIGHTS OF PEOPEKTT AND CONTRACT. 203 
 
 (c) The suit is for damages growing out of the poUution of a 
 stream. The plaintiff is not restricted to mere depreciation of 
 property, but may recover also for inconvenience and discomfort.* 
 
 (d) Plaintiff demands damages for diminution of rental value 
 and also for discomfort and annoyance. He cannot recover for 
 both, for one includes the other. ^ 
 
 (e) In an action for rent, the lessee counterclaims for damages 
 from a nuisance caused by the lessor, which made the premises 
 useless and caused him to abandon them. The measure of damages 
 is the value of the term and also the expense of moving the tenant's 
 business to other premises.' 
 
 New York Elevated Railroad Cases. Benefits. — 
 There are cases in which though there is a technical right of 
 action, importing nominal damages at least, the injury done has 
 so increased the value of the property as a whole, that no sub- 
 stantial damage can be recovered. The theory followed in the 
 New York Elevated Raiboad cases has been that the abutting 
 owner is entitled to maintain an action de die in diem, not for 
 the illegal action of the railway, but because the lawful opera- 
 tion of the road in the streets results in diminishing his ease- 
 ments of light, air, and access. He has on this account been 
 held entitled to an injunction as for a continuing tort, while 
 the defendant has been allowed to have this injunction dis- 
 solved upon an assessment of the value of the easements as 
 taken and an acquirement of them at a valuation fixed by the 
 jury. But if the general benefits coiiJerfed. \yy the taking are 
 such as to increase the value of the whole property Temaining, 
 and there is no disparity between the rate of increase and the 
 property in question and other property similarly afjected, then 
 there are no substantial damages and the plaintiff is not even 
 entitled to nominal damages.* The argument that the continued 
 tortious acts will eventually give to the defendant title to the 
 property rights, the easements which they have wrongfully ap- 
 
 • Weston Paper Co. v. Pope, 155 Ind. 394; 56 L. R. A. 899. 
 ' Swift V. Broyles, 116 Ga. 885; 58 L. R. A. 390. 
 
 ' Grosvenor Hotel Co. v. Hamilton, [1894] 2 Q. B. 836. 
 
 * O'Reilly v. N. Y. Elev. R. R. Co., 148 N. Y. 347; 31 L..R. A. 407. 
 
204 ELEMENTS OF THE LAW OP DAMAGES. 
 
 propriated, fails according to the New York theory because the 
 decree is granted without prejudice to further appropriate ac- 
 tion. It is difficult, however, to imagine any further action, 
 except one identical with that already brought, except that it 
 would be based on an invasion of the easement subsequent to 
 that originally complained of, and which would therefore result 
 in a new verdict for defendant accompanied by a new refusal of 
 a permanent injunction. We have, therefore, in such a case 
 an apparent anomaly, — an easement appurtenant invaded de 
 die in diem, yet the invasion of which cannot be permanently 
 enjoined. The anomaly arises from the fact -that these cases 
 regard the invasion of the easement as lawful and unlawful at 
 the same time. The causa causans is entirely lawful, yet it is 
 made the cause of action for the purpose of compelUng the pay- 
 ment of the damages caused by this lawful act. Hence the right 
 to invoke the aid of the courts must cease where there are no 
 substantial damages to be assessed. The anomaly is inherent 
 in the theory of the cases. If the courts had refused to recog- 
 nize any right of action at all on the ground that consequential 
 damages caused by the operation of the road were damnum 
 absque injuria, the question could never have arisen. But the 
 view being that the damages arise from the taking of an ease- 
 ment,* the whole question becomes one of compensation, and a 
 permanent injunction is out of the question, if there are no sub- 
 stantial damages to be assessed. In ordinary cases the object 
 of the permanent injunction is to stop the tort lest a permanent 
 right be acquired. In cases such as these, the object is to per- 
 mit what would otherwise be a continuing tort to continue in- 
 definitely on compensation being made once for all. 
 
 Deceit, Fraud, Conspiracy. — In actions at law for deceit, 
 fraud, or conspiracy (the principle applies to the numerous 
 species of action in which the plaintiff's claim rests in deception 
 of some kind practised by the defendant), it was early laid down 
 that neither damage without fraud nor fraud without damage 
 
 ' Story V. N. Y. Elev. R. R. Co., 90 N. Y. 122. 
 
TOUTS AFFECTING RIGHTS OF PROPERTY AND CONTRACT. 205 
 
 is enough. Both must concur.' The duty to tell the truth, un- 
 like the duty not to invade the rights of personal security or 
 personal liberty, is recognized by the law only when it becomes 
 productive of injury, either substantial or to a legal right. A 
 declaration charging two persons with falsely, maliciously, 
 wrongfully, vexatiously, deceitfully, and without reasonable and 
 probable cause conspiring together to commence, and com- 
 mencing and prosecuting, an action in the name of a third per- 
 son, but for defendant's own benefit, is defective; it fails to 
 show damage to the plaintiff.^ 
 
 A will is made in A.'s favor ; B. and C. conspire together and 
 induce the testator to revoke it, by means of fraud. A. cannot 
 maintain an action, because, the will being revocable, no legal 
 right of his is interfered with.' Of course the rule of proximate 
 cause applies here as elsewhere. A mortgagee of land promises 
 the mortgagor gratuitously not to foreclose under a power of 
 sale. Afterwards the mortgagee is induced by the defendants 
 (who falsely represent that the mortgagor desires it) to assign 
 the mortgage to a third person. By this means the defendants 
 cause the mortgage to be foreclosed, but the mortgagor is held 
 to have no right of action, because the proximate cause of the 
 loss is not the deception, but the foreclosure. There being no 
 consideration for the promise of the mortgagee, there was noth- 
 ing to prevent him or any assignee from foreclosing, and it can- 
 not be said to be any invasion of the plaintiff's legal rights to 
 deprive him of the benefit of this gratuitous undertaking.* 
 
 In many cases the connection of cause and effect seems very 
 
 ' Baily v. Merrell, 3 Bulstr. 94: A. cheats B. in weighing butter, but 
 afterwards pays enough in settlement to cover the price of the actual 
 quantity. B. can no longer maintain an action. Nye v. Merriam, 35 
 Vt. 438. 
 
 2 Cotterell v. Jones, 11 C. B. 713. 
 
 ' Hutchins v. Hutchins, 7 Hill, 104. For fraud by means of which 
 plaintiff has lost the mere possibility of obtaining reward for the appre- 
 hension of an offender, damages cannot be recovered. Smitha v. Gentry, 
 20 Ky. L. 171; 42 L. R. A. 302. 
 
 * Randall v. Hazelton, 12 All. 412. Cf. Tunbridge Wells Dippers Case, 
 2 Wils. 414, where the loss was the loss of a customary gratuity ; but this 
 was the direct consequence of a disturbance in the right of employment. 
 
206 ELEMENTS OP THE LAW OF DAMAGES. 
 
 probable, but is not considered by the court as sufficiently 
 certain. Thus when the plaintiff charges that he was induced 
 by falsehood to refrain from carrying into effect an intention to 
 attach, as a result of which another creditor has taken the prop- 
 erty, he cannot maintain an action; there is no certainty that 
 he would have attached.* 
 
 Action for Possession of Real Property. — Almost the 
 whole body of modern common-law remedies, as has been seen, 
 has a single though remote origin in the writ of trespass. From 
 this, in the first place, came the action on the case, providing 
 remedies for all novel forms of interference with person or prop- 
 erty, other than violent injuries; and later, as separate species 
 of actions on the case, assumpsit, moulded by the courts into 
 a proceeding for the redress of breaches of contract in general, 
 and trover, developed by them into the modern action for trial 
 of title to personal property. Turning now to real property, we 
 find that the same action on the case has, by a very peculiar 
 process, developed the modern action of ejectment, by means of 
 which title to real property is tried. 
 
 Originally the feudal law provided a great number of writs 
 for the recovery of different estates in land. But owing to a 
 variety of causes these writs, with the progress of society, be- 
 came less and less adapted to the purpose they were introduced 
 to serve. The pleading in real actions became more and more 
 technical, and the abuses of justice more and more marked, and 
 as Parliament did not in this case interfere, it was left to the 
 bar and the courts to invent some new method more simple and 
 equitable than the old. This was done in process of time by the 
 development of a particular species of action of trespass into an 
 action for the trial of all titles. 
 
 The writ of ejectione firmcs was a writ of trespass, designed to 
 give a tenant for a term of years an action against any one who 
 ejected him. As in any other action of trespass, he recovered 
 only damages. Indeed, originally the idea of anything but dam- 
 ages being recovered seems to have been out of the question, for 
 
 ' Bradley v. Fuller, 118 Mass. 239. 
 
TORTS AFFECTING EIGHTS OF PROPERTY AND CONTRACT. 207 
 
 the law did not regard a term of years as an estate in land.' The 
 tenant held under a covenant made by the lord, and for a breach 
 of this covenant by the lessor he could obtain a writ of covenant, 
 by means of which, it is said, the lessor could be compelled to 
 restore him.^ However this may have been, against a stranger 
 he could only recover damages. When an estate for years began 
 to be recognized as an interest in land, the courts appear to have 
 injected into the action a judgment to recover the term, and a 
 writ of possession.' The action of ejectment thus introduced 
 rapidly supplanted the old real actions, and by the time of 
 Elizabeth was firmly established as the common means of try- 
 ing title. 
 
 As at first established it was in no respect fictitious. The 
 first step is an actual entry on the land by the person claiming 
 title. He, then being in possession, leases it for a term of years ; 
 the lessee then remains on the premises till he is ejected, when 
 he becomes entitled to his action of ejectment and recovers back 
 his term and damages. The four requisites to a recovery are, 
 title, lease, entry, and ouster; but for some reason, now diflScult 
 to understand, the ouster might be made by anybody. But the 
 action in this form led to abuses. Any ouster, even by what was 
 called a casual ejector, being deemed enough to support the re- 
 turn, the door was open to collusive ousters; nor was the action 
 yet adapted for the questions of trial of title alone. For this pur- 
 pose a new feature was engrafted upon it in the time of the Pro- 
 tectorate. Without going into details the effect of the change 
 was that the claimant of the title delivered to the tenant in pos- 
 session a fictitious declaration in ejectment, in which John Doe, 
 or Goodtitle, and Richard Roe, or Badtitle, were the imaginary 
 
 » Washb. Real Prop, (eth ed.) § 605. 
 
 ' 3 Blackst. Com. 156. 
 
 ' The Common Pleas had exclusive jurisdiction of real actions, and one 
 reason for these changes was no doubt the desire of the King's Bench and 
 the Exchequer to draw controversies about land into their own hands. 
 Another was the fact that Equity was beginning to grant specific perform- 
 ance against lessors, and decree perpetual injunctions against strangers. 
 "This, drawing the business into the courts of equity, induced the courts 
 of law to resolve, that they should recover the land itself by an habere 
 facias possessionem." Gilbert on Eject, pp. 3, 4. 
 
208 ELEMENTS OP THE LAW OF DAMAGES. 
 
 plaintiff and defendant, the plaintiff declaring on a fictitious 
 lease from the real claimant for a term of years, and alleging an 
 ouster by defendant. The title to the action therefore was John 
 Doe on the demise of A. v. Richard Roe. To the declaration 
 was annexed a notice to B. to come into court and defend. The 
 court now compelled B. on his appearing, to agree to confess at 
 the trial the lease, entry, and ouster (all fictions), and to rely, 
 solely on his title. The action thus became a suit between the 
 real claimant and the tenant, to establish the right to the posses- 
 sion of the land. In it, however, any substantial recovery of 
 damages ceased to be possible, the plaintiff being a fictitious 
 person, and they now became nominal. To recover the injury 
 caused meantime, another action was necessary, and for this 
 the action of trespass for mesne profits, in which the real claimant 
 recovered the value of the rents and profits while kept out of 
 possession, was introduced. In this the plaintiff recovered not 
 only the mesne profits, but damages for the eviction as well.^ 
 
 Since the beginning of this century, the action of ejectment 
 and the actions for mesne profits have been generally done away 
 with by legislative enactment, and in their place a statutory 
 action exists which covers both. In it there are no fictions, the 
 real claimant sues the real defendant, and if successful recovers 
 the land, mesne profits, and also damages, if any. In some 
 American jurisdictions the action of ejectment never obtained 
 any foothold. In the New England States, a real writ, the writ 
 of entry, has always been used for the purpose of trjang title; 
 in one or two others the action of trespass to try title has an- 
 swered the same end. But these actions now resemble essen- 
 tially the statutory action above described, and the general 
 principles governing the measure of recovery are the same in 
 all jurisdictions. 
 
 Independently of statutory provisions the claims for damages 
 and for mesne profits are regarded in some jurisdictions as dis- 
 tinct causes of action, so that, though joined in one action, they 
 must be separately set up.^ 
 
 ' Goodlitle v. Tombs, 3 Wils. 118. 
 
 ' Cf. Lamed v. Hudson, 57 N. Y. 151; Clason v. Baldwin, 129 N. Y. 
 183. 
 
TORTS AFFECTING RIGHTS OF PROPERTY AND CONTRACT. 209 
 
 The fundamental distinction between the two must always be 
 borne in mind. So far as the plaintiff claims mesne profits only, 
 the action is merely to recover the annual value of the land. 
 So far as it is an ordinary action of trespass vi et armis, the rules 
 governing the measure of damages are the same as in any other 
 suit for damages. Every circumstance of aggravation or miti- 
 gation may be gone into. 
 
 In England, the plaintiff recovers in the action for mesne 
 profits the costs of the ejectment suit.' In this country, whether 
 he recovers them in the ejectment suit or in the action for mesne 
 profits is probably a matter of statutory regulation.' As a gen- 
 eral rule, the occupant holding under belief of title is allowed 
 to reduce the recovery to the extent of beneficial improvements 
 made in good faith. This is no doubt on the ground that the 
 actual injury to the plaintiff is so much loss. This matter has 
 been already considered under the head of Benefits.' The re- 
 covery of the expenses of litigation in the ejectment suit has been 
 attempted in the action for mesne profits, and in an English case 
 the plaintiff was allowed to recover as damages such expenses 
 incurred by him in a court of error in reversing an ejectment 
 judgment ; * but this, as explained in a subsequent case,° was be- 
 cause at that time a court of error could not award costs. In one 
 case in this country' it was held that counsel fees were recover- 
 able, but the court cited no authority, and the rule is every- 
 where clearly the other way.' There is no difference as to the 
 allowance of counsel fees between ejectment and any other 
 action.* 
 
 With regard to interest, the cases often speak of interest being 
 allowable by the jury in a proper case.' Possibly the ground of 
 
 ' Doe V. Filliter, 13 M. & W. 47. 
 = Hunt V. O'NeUl, 44 N. J. L. 564. 
 » See Chap. IX. 
 
 * Nowell V. Roake, 7 B. & C. 404. 
 " Doe V. FilUter, 13 M. & W. 47. 
 
 • Doe V. Perkins, 8 B. Mon. 198. 
 
 ' HerreschofiE v. Tripp, 15 E. I. 92; Doe v. Filliter, 13 M. & W. 47. 
 See Chap. III. 
 
 » Herreschoff v. Tripp, 15 R. I. 92. 
 » Vandevoort v. Gould, 36 N. Y. 639. 
 
 14 
 
210 ELEMENTS OP THE LAW OP DAMAGES. 
 
 this rule was that in actions for rent in arrears, the early remedy 
 was a summary one, by distress.' If so, the reason seems a bad 
 one, as there was no summary way to recover mesne profits. At 
 the present day, in equitable proceedings, where the value of use 
 and occupation is recovered, interest is allowed as a matter of 
 course, and no reason is perceived why, in this country at least, 
 the plaintiff should not in all cases be allowed interest. Without 
 it he certainly does not receive compensation. 
 
 Rule. 
 
 53. In the action for mesne profits the measure of damages is 
 the net value of the use of the land during the period of 
 eviction. The jury may give interest with proper rests, 
 extending hack by virtue of the statute of limitations only 
 six years, and never beyond the time when the plaintiff 
 acquired title. The defendant, if an occupant under 
 belief of title, may reduce these damages by proof of rea- 
 sonable expenditure for improvements, and for any 
 necessary expenses. 
 
 Illustrations. 
 
 (o) The property is a ferry. The measure of recovery is the 
 net profits.^ 
 
 (6) Defendant's counsel asks the court to charge that the plain- 
 tiff is not entitled to any damages except from the time when he 
 acquired title. For failure to grant the request defendant is en- 
 titled to a new trial.^ 
 
 (c) A. recovers in ejectment. He is entitled to damages from 
 the withholding of the land up to the date of its recovery, and is not 
 limited by the date of bringing his action.'* 
 
 (d) The land is unfenced prairie, yielding nothing of any kind. 
 The plaintiff can recover nothing as mesne profits.' 
 
 » Boiling V. Lersner, 26 Gratt. 36, 64. 
 » Averett v. Kendrick, 20 Ga. 523. 
 " Danziger v. Boyd, 54 N. Y. Super. 365 
 ' Danziger v. Boyd, 120 N. Y. 628. 
 ' Griffey v. Kennard, 24 Neb. 174. 
 
TOBTS AFFECTING RIGHTS OF PROPERTY AND CONTRACT. 211 
 
 (e) It appears that a mining property was leased by defendant 
 for $2,000 a year and a royalty. $2,000 was received under the 
 lease, but no ore was taken out, while defendant, being evicted by 
 plaintiff, became liable to the lessee in damages. The $2,000 forms 
 no basis for estabUshing the rental value.' 
 
 (J) Defendants make valuable improvements consisting of neces- 
 sary mining machinery, and act in good faith in working the mines. 
 They are chargeable only with the value of the ore in place, and may 
 show the improvements to be a full compensation for the value of 
 the use.^ 
 
 (gr) Plaintiff owns a leashold interest in the rear of a city lot. 
 Defendant owning a similar interest in the front takes possession 
 of the whole, having knowledge of plaintiff's rights. The proper 
 method of ascertaining mesne profits is to ascertain the rental value 
 of the whole and apportion it, and allow nothing for improvements.^ 
 
 (h) Mesne profits consist of the net rents after deducting all 
 necessary repairs and taxes, or the net rental value, or the value 
 of the use and occupation.* 
 
 (■i) The rents in a city are by general custom payable quarterly. 
 A referee in ascertaining the value of the mesne profits computes 
 interest from the expiration of each quarter day. The plaintiff is 
 entitled to judgment on this basis.* 
 
 (j) In an action for mesne profits against a defaulting vendee, 
 the measure of damages is the actual rental value and not such 
 lesser amount as the defendant may have got from it.* 
 
 Interference with Contract. — Besides personal rights, 
 and the rights of property, torts may affect ordinary rights of 
 contract. Where A. has made a contract with B., and C. inter- 
 feres with B.'s performance of it, by persuading the latter to 
 break it, does this give A. a right of action in tort against C, and 
 if SO, what would be the measure of damages ? The answer is 
 
 ' Kille V. Ege, 82 Pa. St. 102. 
 
 ' Ege V. Kille, 84 Pa. St. 333 ; so of improving oil lands by sinking an 
 oil well. Phillips v. Coast, 130 Pa. St. 572. 
 
 ' Woodhull V. Rosenthal, 61 N. Y. 382. 
 
 ' Wallace v. Berdell, 101 N. Y. 13. 
 
 ' Jackson v. Wood, 24 Wend. 443. Cf. Hodgkins v. Price, 141 Mass. 
 162. 
 
 " Credle v. Ayers, 126 N. C. 11; 48 L. R. A. 751. ' 
 
212 ELEMENTS OF THE LAW OF DAMAGES. 
 
 that it does give an action, and that the damages must necessarily 
 depend upon the nature of the contract and the extent of the 
 injury. This sort of injury is called malicious interference with 
 contract, but it is clear that the malice is simply the wrong im- 
 plied in doing an unlawful act, which consists in persuading one 
 to break a contract with another.' The contractor remains of 
 course liable; the damages are for the tort. Such actions must 
 be very rare, for several reasons. In the first place, it has been 
 already explained that the law usually regards the human will as 
 free, and hence, in ordinary cases, when one who has entered 
 into a contract breaks it, this is supposed to be his voluntary act, 
 not the act of some third person. Thus, in an action for breach 
 of promise, plaintiff cannot enhance her damages by proof that 
 she, at defendant's solicitation, had broken off an existing en- 
 gagement to a third party.^ Perhaps, however, if the breach of 
 the first promise had been procured by fraud or deceit (e. g., by 
 falsely representing that the first promisor was dead), the de- 
 cision would be the other way. 
 
 At the present time, the subject derives its chief importance 
 from the attempts incessantly made by Trade Unions on the one 
 hand and sometimes by combinations of capital on the other 
 to interfere not merely with existing contracts, but with the 
 freedom of contract and the right to labor, the two founda- 
 tions on which rest the entire structure of individual ownership. 
 At common law every one has a right to require that the course 
 of trade and the right to labor be kept free from unreasonable 
 obstruction. This principle is referred to by the Supreme 
 Court of the United States in Loewe v. Lawlor (the Danbury 
 Hatters Case).' Wherever through conspiracy or unlawful 
 combination of others A. is prevented from making use of his 
 right to labor for whom he pleases, or from making contracts 
 with all the world for the purpose of carrying on his trade or 
 
 • Temperton v. Russell, [1893] 1 Q. B. D. 715; Walker v. Cronin, 107 
 Mass. 555. 
 
 = Hahn v. Bettinguen, 81 Minn. 91; 50 L. R. A. 669. 
 
 ' 208 U. S. 274, 295. This case, decided under the Anti-Trust Act of 
 1890, 26 Stat. 209, held that a manufacturer, boycotted by a union, 
 could maintain an action for treble damages. 
 
TORTS AFFECTING RIGHTS OF PROPERTY AND CONTRACT. 213: 
 
 business, there is a consensus of opinion that a wrong has been 
 done. How far the law has the means of remedying it is another 
 question, often complicated by the fact that the combination 
 which inflicts the wrong consists of a committee or board of 
 irresponsible agents or managers of an unincorporated body, 
 which cannot be reached under ordinary common-law principles 
 except by a suit against all its members nominatim. In a lead- 
 ing English case ' the House of Lords reached the conclusion 
 that under the English Trade Union Registration Act a trade 
 union could be sued for acts of intimidation and besetting of 
 employees to prevent their working or continuing to work, and 
 that any damages recovered could be reached through the funds 
 of the union treasury. Parliament changed the law by a stat- 
 ute subsequently passed, but the reasoning of the court (espe- 
 cially of Lord Lindley) would seem to point to the conclusion 
 that, apart from any legislation, there must be in all such cases 
 of voluntary associations having funds an inherent right to reach 
 them through their managers or trustees and treasury for the 
 purpose of recovering damages. In the case of combinations of 
 capital no difficulty usually exists, as they are either incorpo- 
 rated or in the hands of a few responsible men who can be 
 held for damages. In such cases, Uabihty being estabUshed, 
 the measure of damages should be determined in accordance 
 with the principles applicable to torts. 
 
 Illustrations. 
 
 (a) A manufacturers' association wishing to drive one, not a 
 member, out of business adopts a by-law making withdrawal of 
 patronage compulsory. In a suit for conspiracy against individual 
 members, exemplary damages cannot be recovered, because they 
 may haye been coerced into doing wrong by the by-law. Actual 
 damages are, however, recoverable.^ 
 
 (5) A by-law of a liveryman's association binds the members not 
 
 ' Taff Vale Ry. v. Am. Soo. Ry. Servants, [1901] A. C. 427. Cf. Duke 
 of Bedford v. Ellis, id. 1. 
 
 ' Boutwell V. Marr, 71 Vt. 1 ; 43 L. R. A. 803. A labor union may be 
 prevented from fining or threatening to fine a member to induce him to 
 leave his employer. Wilcutt v. DriscoU, 200 Mass. 110. 
 
214 ELEMENTS OF THE LAW OF DAMAGES. 
 
 to work for any one employing non-members, and prevents them 
 from letting a hearse for a funeral where the undertaker employs 
 non-members, or to any one employing non-members for the oc- 
 casion. In pursuance of this by-law A. is suddenly at the last 
 moment deprived of the use of a hearse and carriage engaged by 
 him for the funeral of his child. Exemplary damages are recoverable 
 in the discretion of the jury.' 
 
 To support an action of tort for interference with a contract, 
 as by procuring the discharge of an employee, the contract must 
 be of some definite value. Otherwise it is damnum absque injuria, 
 and actual malice does not affect this principle, because ordi- 
 narily a lawful act does not become unlawful through being 
 done from an evil motive. 
 
 Illustration. 
 
 A. procures the discharge of B., an employee, not engaged for a 
 definite time, by threatening to terminate a contract between him- 
 self and the employer C, which is terminable by him at any time. 
 No action will lie, no matter what the motive of A.'s threat.^ 
 
 Enticing a Servant. — The action for enticing away or 
 driving off a servant, wherever it is recognized, results in dam- 
 ages the measure of which will vary with the circumstances. It 
 may include the reasonable cost of procuring other labor, or 
 damages to existing work, loss of profits, etc. The field covered 
 is the entire field of contract.' 
 
 • Gatzow V. Buening, 106 Wis. 1 ; 49 L. R. A. 475. See further Quinn 
 V. Leathern, [1901] A. C. 495; Raymond v. Yarrington, 96 Tex. 443; 62 
 L. R. A. 963; Natl. Protective Assn. v. Gumming, 170 N. Y. 315; Gray v. 
 Building Trades Council, 91 Minn. 171; 63 L. R. A. 753, 757; Loewe v. 
 Lawlor, 208 U. S. 274. In Gray v. Building Trades Council the court 
 says (p. 182) that a wrongful interference with one's business and pro- 
 spective customers is as much an interference with his rights as though 
 contractual relations actually existing were interfered with, quoting Jersey 
 City Printing Co. v. Cassidy, 63 N. J. Eq. 759. In such a case an injunc- 
 tion may well lie when (there being no interference with an existing con- 
 tract) no action at law can be maintained. 
 
 ' Raycroft v. Taintor, 68 Vt. 219; 33 L. R. A. 225. 
 
 » Thacker Coal Co. v Burke, 59 W. Va. 253; 5 L. R. A. (n. s.) 1091. 
 
CHAPTER XVI. 
 
 EMINENT DOMAIN. 
 
 There is no form of statutory proceeding more common than 
 that by which, under the power of Eminent Domain, private 
 property is taken for public use. It is by virtue of this power that 
 land is taken for railroads, canals, streets, and a host of other 
 purposes, public in their nature. The general principle is that 
 the public character of the use is determined by the legislature ; 
 and, except in very clear cases, the decision of the legislature is 
 final. If, however, the use be obviously private, as the taking of 
 A.'s property for the purpose of giving it to B., the courts will 
 interfere. 
 
 The fundamental principles of the law of Eminent Domain as 
 it exists in the United States are derived from constitutional pro- 
 visions which in substance prohibit the taking of private property 
 for public use withovi just compensation} 
 
 As originally interpreted, redress under this clause was limited 
 to cases of actual taking of property, so that when no property was 
 taken, however much injury was inflicted, there could be no re- 
 covery for it. Damages so excluded were called "consequen- 
 tial," i. e., consequential to the taking, for, so far as the whole 
 transaction was concerned, no injury could be more direct.^ 
 We have already seen ' that there is no fixed principle of law 
 which excludes all consequential damages from consideration. 
 They are admitted both in tort and contract, and if they were to 
 be permanently excluded in eminent domain, they must here con- 
 stitute a class apart. And this seems to have been the idea of 
 
 ' Const. New York, art. 1, § 6. 
 
 " 3 Sedgwick, Dam. § 1182; Radcliffe's Ex'rs v. The Mayor, 4 Comst. 
 195. 
 
 ' Ante, Chap. V, 
 
216 ELEMENTS OP THE LAW OP DAMAGES. 
 
 the learned court which decided the leading case in New York, 
 for it classified the consequential damages in the case of a "tak- 
 ing" under eminent domain with damages which come from a 
 general change in the method of carrying on the work of the com- 
 munity, e. g., the injury done to the business of stage proprietors 
 by railroads. But the cases are widely different. What leads to 
 the loss suffered by the stage proprietor is the newly developed 
 preference of the public for conveyance by railroad. But in the 
 case of injury done to private property by a railroad, the injury 
 is as direct as if it were done by one having no authority from the 
 State, and if we admit the fact of damage, it introduces great 
 confusion into the matter to call it consequential. Nevertheless, 
 this meaning of the term should be noticed, as it is opposed to the 
 significance which the term elsewhere has. Under constitutions 
 like that of New York the cause of action was regarded as the tak- 
 ing; damage directly caused by the taking to the remainder not 
 taken, as by impairing its use, might be considered; but for 
 damage ifi case there was no taking, no redress could be given. 
 This injustice has been remedied in different ways. In New 
 York, in the most glaring case which ever arose, that of the New 
 York Elevated Railroad cases, the courts finally decided that 
 although no land was taken, the obstruction of the easements 
 of light, air, and access in the streets, was a taking, and must be 
 compensated for under the constitution ; in other jurisdictions, 
 by construing "property" to mean ownership rather than land 
 and buildings, a construction was given to "taking" which the 
 earlier decisions could not have warranted. But in many of the 
 newer constitutions the language of the constitutional provision 
 has been changed, so as to compel compensation whenever prop- 
 erty is either taken or damaged. In England, where no constitu- 
 tional provision exists, such had always been the statutory rule, 
 so that at the present day the principles adopted under the newer 
 American constitutions correspond closely with those of the 
 English' courts, while under the older American constitutions 
 there is a good deal of confusion. It must always be remem- 
 bered that a narrow constitutional provision such as that of 
 New York does not debar the legislature from being more lib- 
 eral, and from the first it has been a frequent practice for a 
 
EMINENT DOMAIN. 217 
 
 legislature in partiqular charters to provide for recovery for 
 damage, when the constitution was silent on the subject. In 
 a discussion of the elementary principles of damages it is only 
 possible to notice a few points, where decisions under Eminent 
 Domain constitutional provisions, and statutes throw some 
 light on the general subject. 
 
 It should be observed that in stating a general rule the courts 
 have usually said that when part of a tract is taken the measure 
 of damages is the value of the land taken, together with any 
 damage to the land not taken, but excluding such benefits (if 
 any) as the law of the particular State allows.' Mr. Lewis finds 
 that the decisions fall into five classes, according as they maintain 
 one or other of the following propositions : — 
 
 I. Benefits not considered at all. II. Special benefits set 
 off against damages to remainder, but not against value of 
 part taken. III. Benefits, general or special, set off as in II. 
 IV. Special benefits set off against both damages to remainder 
 and value of part taken. V. Benefits, both general and special, 
 set off as in IV.' 
 
 Benefits. 
 
 While there has been much diversity of decision in different 
 jurisdictions, the weight of opinion seems to be that general bene- 
 fits cannot be taken into consideration, while special benefits 
 must be allowed for. The difference between these two classes 
 of benefits is fundamental; the former, being those general ad- 
 vantages derived from the improvement which are shared by 
 the community at large, are often to a greater or less degree con- 
 jectural and uncertain, are shared by adjoining lands of which 
 no part is taken, and are reflected in a general enhancement of 
 values in the neighborhood ; in other words, exactly that incre- 
 ment which the thrifty purchaser may be supposed to have 
 looked for in acquiring the property, if recently acquired ; or in 
 holding and paying taxes on it if long held. Special benefits, on 
 
 « Lewis, Em. Dom. (2d ed.) § 471 o, 
 > Ibid. § 465. 
 
218 ELEMENTS OP THE LAW OP DAMAGES. 
 
 the other hand, are such as inure to the land itself and are pecu- 
 liar to it, as by draining a marsh, protecting lands from floods, 
 etc. In some cases special benefits so enter into the damages 
 as to be inseparable from them, as when in New York damages 
 are given for the taking of the right of access by an elevated rail- 
 road, and the taking (through the construction of a station) 
 virtually improves the access. In courts taking this view of 
 the matter, special benefits allowed in eminent domain cases 
 resemble those allowed against damages in other cases.* 
 
 While the cases cannot be reconciled, and the local rule must 
 in any particular case be examined, there is a tendency toward a 
 general rule that just compensation means the net total value of 
 the property rights of which the owner is deprived. General ben- 
 efits should not be allowed, partly because they are conjectural. 
 The land may be taken, and the expected benefits not accrue. 
 If the improvement enhances the value of the land taken, the 
 owner can hardly be taxed for this, when his neighbor, whose 
 land is not taken, also gets the benefit free of charge. Special 
 benefits, on the contrary, by so much diminish the damage done 
 to the particular parcel, and if they affect market value, affect the 
 value of that parcel. 
 
 There are a great variety of injuries resulting in loss and 
 damage which the law does not attempt to redress. Thus a city 
 may, by erecting a prison near plaintiff's property, seriously 
 injure it or destroy most of its value for use. But there is no 
 redress, and this although the constitution gives damages for 
 injuries to private property as well as for taldng.^ It may be 
 doubted whether cases like this are reconcilable in principle 
 with the practice of assessing for benefits when conferred by 
 the exercise of the power of eminent domain. The fact that the 
 land used belongs to the city does not seem conclusive. It is 
 said, of course, that there is no taking, and hence it is damnum 
 absque injuria; but why should not the principle sic utere tuo 
 ut alienum non Icedas apply to public bodies as well as to pri- 
 
 ' Chap. IX. Cf. Beveridge v. Lewis, 137 Cal. 619; 69 L. R. A. 581. 
 In New York both classes of benefits are set off. Lewis, § 470 ; O'Reilly 
 V. N. Y. Elevated R. R. Co., 148 N. Y. 347. 
 
 = Long V. Elberton, 109 Ga. 28; 46 L. R. A. 428. 
 
EMINENT DOMAIN. 219 
 
 vate persons ? The extension of the principle which underlies 
 the allowance of damages for taking and injuring to all cases 
 of active damage which can be measured in money seems 
 greatly to be desired. 
 
 The rule under the Illinois constitution of 1870, allowing 
 damages for property injured as well as for property taken, is as 
 to property not taken the difference in the fair cost value of 
 the land before and after the construction of the improvement.* 
 
 This is supposed to give special benefits but to exclude gen- 
 eral benefits. The rule here seems to coincide with the ordi- 
 nary common-law rule that benefits which enter into the damages 
 must perforce be allowed, and this seems to be the theory of 
 the Illinois Supreme Court,^ and the true rule under such con- 
 stitutions, or in jurisdictions holding damage to ownership to be 
 a taking. Where physical injury to property is regarded as a 
 taking, or where easements of light, air, and access in streets 
 are regarded as property, compensation is given although the 
 work itself be actually authorized, just as in the case of an ordi- 
 nary trespass. In such cases it sometimes happens that the 
 construction which gives rise to the damage is not permanent, 
 and then the taking is spoken of as temporary. The result 
 seems very much the same as if the constitution provided for 
 compensation in all cases of injury to property.* 
 
 The case of Austin v. Augusta Terminal R. Co.* follows, like 
 so many others, the Enghsh rule, that the damage must be the 
 diminution of some right. A mere diminution in market value, 
 through user of the franchise, e. g., from noise, cinders, smoke, 
 etc., will not do. This rule assimilates the right of recovery in 
 the case of lawful public acts to that in the case of unlawful 
 private acts; but how far does this go? Can a railroad 
 seriously impair the value of a dwelling-house by maintaining 
 what would be a nuisance as against a private person, and 
 
 ' Peoria, B. & C. T. Co. v. Vance, 225 111. 270. 
 
 ' West Side El. Ry. Co. v. Stickney, 150 111. 362, 382. Cf. Swift v. 
 Newport News, 105 Va. 108; 3 L. R. A. (n. s.) 404. 
 
 > McKeon v. N. Y., N. H. & H. R. R. Co., 75 Conn. 343 ; 61 L. R. A. 
 730. 
 
 * 108 Ga. 671. 
 
220 ELEMENTS OF THE LAW OP DAMAGES. 
 
 defeat the action by saying that it has not interfered with any 
 right or easement? Perhaps cases of nuisance with special 
 damages mark the dividing line between damnum absque injuria 
 and cases in which recovery can be had. 
 
 Where, under the eminent domain statutes, provision is not 
 made to compensate for all injury, still injury caused by negli- 
 gent use of the statutory powers conferred is always actionable. 
 Further than this, in England a distinction is taken between 
 'permissive and compulsory powers. If the powers be compul- 
 sory, e. g., those powers under which the ordinary operation of 
 the road goes on, then for damages from the non-negligent use 
 of them no action will lie even if damage be caused, — it is 
 damnum absque injuria. But if the powers be merely per- 
 missive, non-negligent damage will be actionable.' So in this 
 country a company having a discretion may be held, when if no 
 discretion exists it is damnum absque injuria.^ When the proper 
 action is for negligence, or a nuisance, condemnation proceed- 
 ings are improper. 
 
 Illustration. 
 
 Assessment of damages is applied for as for property taken, in- 
 jured, or destroyed under the eminent domain statute. The 
 proof shows that the damage was caused by negligence in con- 
 structing a subway. This defeats the proceeding, and action lies 
 in trespass.' 
 
 Even in the anomalous case of the New York Elevated Rail- 
 roads, although the ultimate object is condemnation, the first 
 step is always an ordinary common-law action, as against a 
 vsTongdoer. 
 
 In the ordinary case of taking the right of way for a railroad, 
 the interest to be acquired is usually an easement with a possi- 
 bility of reverter. This possibility, however, is so remote that 
 
 ' Canadian Pacific Ry. v. Parke, [1899] A. C. 535; Canadian Pacific 
 Ry. V. Roy, [1902] A. C. 220. 
 
 ■■• Cf. Bait. & P. R. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 335, 
 with Terminal Co. v. Jacobs, 109 Tenn. 727; 61 L. R. A. 188. 
 
 ' Storlc V. Philadelphia, 195 Pa. 101; 49 L. R. A. 600. 
 
EMINENT DOMAIN. 221 
 
 the owner receives the market value of the land taken; but 
 if there are deposits of minerals or oil underneath the surface 
 required for the easement, which can be enjoyed by the owner 
 notwithstanding the easement, these must be allowed for. If 
 he were given the market value for land of this sort, he would 
 be compensated not only for the easement parted with but 
 for property not really taken.^ 
 
 Where damages are given for injury to land not taken, it 
 must be part of the same tract of land. For damages to separate 
 adjoining parcels the owner cannot recover.^ The application 
 of this rule gives rise to many perplexing questions. 
 
 In eminent domain cases the full value of the land taken 
 must be paid for, and this may even be enhanced by the tortious 
 act of the taker. 
 
 Illustration. 
 
 In the construction of public improvements, but prior to the in- 
 stitution of proceedings to condemn, structures are placed on the 
 land. This constitutes a trespass. The structures become the 
 property of the owner, and in fixing compensation their value must 
 be taken into account.' 
 
 Where the damages given are for the taking of land, damages 
 to the person of the owner or the state of his business cannot be 
 looked into. 
 
 Illustration. 
 
 In a suit for the value of land taken for railroad purposes, dam- 
 ages based on evidence that plaintiff's business with the stock of 
 goods on hand must be carried on elsewhere at a less profit are 
 speculative, remote, and uncertain.* 
 
 In estimating the value of land taken for purposes of eminent 
 domain, the ordinary rule is the market value, but in arriving 
 
 ' Southern Pacific R. R. Co. v. San Francisco Savings Union, 146 Cal. 
 290; 70 L. R. A. 221. 
 
 ' Sharp V. United States, 191 U. S. 341. 
 
 ' St. Johns-dlle v. Smith, 184 N. Y. 341; 5 L. R. A. (n. s.) 922. 
 
 ' Becker v. Phila. & Reading T. R. R. Co., 177 Pa. 252; 35 L. R. A. 
 583. 
 
222 ELEMENTS OF THE LAW OP DAMAGES. 
 
 at this, evidence may be received of special availability for the 
 purpose for which it is taken. 
 
 Illustrations. 
 
 (a) A boom company condemns lands for boom purposes. 
 This adaptability of the lands for the purposes of a boom is a proper 
 element.' 
 
 (6) The land is taken for a bridge site. Its value as a site for 
 one of the abutments may be considered.^ 
 
 (c) In such cases the market value is made up of the value apart 
 from special adaptability, plus whatever a purchaser would have 
 added to such value because of the special adaptability.^ 
 
 The question of the allowance of benefits under eminent 
 domain statutes must be distinguished from assessments for 
 benefits conferred by municipal improvements. In the latter 
 cases the process is legislative, under the taxing power, and unless 
 the case is a very extreme one, e. g. one of confiscation, the courts 
 will not interfere.* The question of benefits under the eminent 
 domain statutes is one entirely judicial. 
 
 • Boom Co. V. Patterson, 98 U. S. 403. 
 " Young V. Harrison, 17 Ga. 30. 
 
 ' Sargent v. Merrimac, 196 Mass. 171; 11 L. R. A. (n. s.) 996. 
 
 * French v. Barber Asphalt Paving Co., 181 U. S. 324. Cf. Norwood v. 
 Baker, 172 id. 269; Mantorville R. & T. Co. v. Slingerland, 101 Minn. 488; 
 11 L. R. A. (n. 8.) 277. 
 
CHAPTER XVII. 
 
 DAMAGES IN CONTRACT. 
 
 The line of division which separates contract from tort has 
 been already noted. The fundamental distinction is that in one 
 case the action is brought to recover for the loss of the benefit 
 of the contract, in the other to recover damages for an act or 
 omission, independent of contract. What this act, or failure to 
 act, really is we cannot generally understand until every circum- 
 stance of aggravation or mitigation has been gone into; while 
 in the case of a contract we merely need to know whether there 
 has been a breach. The motive of a defendant in contract is 
 immaterial, not only as to liability, but also as to damages ; and 
 exemplary damages cannot be recovered.' As a rule pecuniary 
 elements of injury only are considered. 
 
 Actions of contract are divided into actions on express con- 
 tracts, and actions on implied contracts. In the former case there 
 is an express stipulation of some kind, oral or written; in the 
 latter, when one has performed services or furnished money's 
 worth to another, at his request, the law is said to imply an 
 undertaking to pay for them. 
 
 To understand the different ways in which the law gives com- 
 pensation in the case of contracts, it is necessary to bear in mind 
 that at common law assumpsit was a general form of action for 
 both express and implied contracts; if the contract sued upon 
 was express, the assumpsit was said to be special; if the liabiUty 
 were merely impUed by law, it was general. In a declaration in 
 assumpsit, the pleader stated his case in the form of "counts," 
 and of these there were several, founded on impUed liability of 
 such ordinary occurrence that they came to be known, and 
 indeed still are known, wherever any trace of common-law 
 
 ' Grand Tower Co. v. Phillips, 23 Wall. 471. 
 
224 ELEMENTS OP THE LAW OF DAMAGES. 
 
 pleading remains, as the "common counts;" viz., for goods 
 sold, work done, money lent, money paid, Tnoney had and re- 
 ceived, etc. A declaration may still contain both special and 
 general counts, — that is, it may contain a statement of the 
 cause of action as founded upon an express contract, coupled 
 with a statement of it as founded upon an implied contract. 
 In the two cases the measure of damages will usually be differ- 
 ent, and in some cases the plaintiff has the right to elect on which 
 he will stand. 
 
 Contract gives rise to a variety of questions which tort does 
 not, e.g., a contract may be rescinded for fraud in procuring it, 
 and an action for deceit follows.' The same contract may be 
 affirmed and suit brought upon it, in which case the damage 
 will be governed by contractual rules.^ The performance of the 
 contract may be prevented by the other party.' The per- 
 formance may be countermanded by one party before or during 
 performance.* 
 
 The measure of damages in an action for breach of contract 
 depends mainly on the value of a promise, and the fundamental 
 rule is that the plaintiff recovers the net benefit of having the 
 contract performed. He is to be put into the same situation as 
 if the contract had been performed. The net benefit means the 
 total sum of benefits. His loss is not measured by the considera- 
 tion, because he would have parted with that had the contract 
 been performed. He is not limited to the expense of preparation 
 to perform, as this is part of the consideration. But this rule is 
 limited by another : that if the gains, profits, or benefits of the 
 contract are incapable of proof, as being too uncertain or specu- 
 lative, he may prove what he has lost through the breach of 
 contract. 
 
 Again, the contract may have been entered into with a view to 
 a special purpose, within the contemplation of the parties, and 
 for this purpose the plaintiff may have been put to expense. 
 
 ' Simon v. Goodyear Metallic Rubber Shoe Co., 44 C. C. A. 612; 105 
 Fed. 573; 52 L. R. A. 745. 
 ' Ibid. 
 
 ' See 2 Sedgwick on Damages, §§ 618, 754. 
 ' Ibid. § 758. 
 
DAMAGES IN CONTRACT. 225 
 
 In this case he will be entitled to damages for this loss, in addi- 
 tion to the benefit of the contract. But these are consequential 
 damages, and do not resemble expenditures incurred as part of 
 the price given for the benefit of the contract. These distinctions 
 need to be carefully noted. To put the matter in another way : 
 throughout the whole range of contract the rule of Certainty and 
 the rule in Hadley v. Baxendale are constantly in force, and 
 both will be found to embody essential tests of the measure of 
 recovery. Neither, however, takes explicit notice of a funda- 
 mental difficulty, — that the loss may be of two entirely different 
 kinds: loss occasioned (e. g., losses incurred in preparing to 
 perform), and gain prevented {i. e., the benefit or advantage to 
 be derived from the contract, profits, etc.). Sometimes the two 
 coincide, as when the loss is itself the benefit of the contract. 
 Sometimes one has nothing to do with the other; generally one 
 excludes the other. 
 
 "The primary measure of damages is the amount of the party's 
 loss; and this loss, as we have seen, may consist of two heads or 
 classes of damage, — actual outlay and anticipated profits. 
 But failure to prove profits will not prevent the party from 
 recovering his losses for actual outlay and expenditure. If he 
 goes also for profits, then the rule applies as laid down in Speed's 
 case, and his profits will be measured by ' the difference between 
 the cost of doing the work and what he was to receive for it,' etc, 
 The plaintiff was not bound to go for profits, even though he 
 counted for them in his petition. He might stop upon a showing 
 of losses. The two heads of damage are distinct, though closely 
 related. When profits are sought, a recovery for outlay is in- 
 cluded, and something more. That something more is the profits. 
 If the outlay equals or exceeds the amount to be received, of 
 course there can be no profits." ' 
 
 Rules. 
 
 54. For breach of contract the measure of damages is the net 
 value of the contract, or what wovld have been realized 
 had the contract been performed. This, in full, yields 
 actual outlay and anticipated profits. 
 
 ' Opinion of the court in United States v. Behan, llOU. S. 338, 345. 
 
 15 
 
226 ELEMENTS OF THE LAW OF DAMAGES. 
 
 55. Where this is incapable of proof, the net expenses of 
 
 preparation to perform may be recovered. 
 
 56. Consequential damages are recoverable only, if vnthin the 
 
 contemplation of the parties. 
 
 Illustrations. 
 
 (a) The contract is to furnish a hall for the performance of a 
 theatrical company, the plaintiff to have half the gross receipts. 
 On breach, the amount of profits which the plaintiff could have 
 made are not susceptible of proof; his measure of damages is the 
 amount of his expenses legitimately incurred in preparing for the 
 performance of the contract.* 
 
 (6) The contract is to improve a harbor, and requires extensive 
 preparatory expenditure. The plaintiff, on being prevented from 
 performing his contract, claims to recover $33492.90 for these, and 
 also that as by an expenditure of $10,000 more he would have 
 become entitled to the full contract price, he should be allowed 
 $8,807.10 in addition. It does not appear that he coTild certainly 
 have made any profit. His measure of damages is the simi spent in 
 preparing to perform.^ 
 
 (c) M. agrees to procure and deliver marble for a public building, 
 to be paid in instalments as the work progresses. The contract 
 having been partly performed, the defendants refuse to go on. The 
 measure of damages in respect to the part of the work remaining 
 unperformed is the difference between what the performance would 
 have cost, and the contract price, i. e., the profits of the bargain.' 
 
 (d) A. purchases from B. five hundred buggies of specified 
 description and at stipulated prices, to be ordered as needed. B. 
 purchases all necessary material and constituent parts, but A. re- 
 pudiates the contract. B. is not bound to proceed with the manu- 
 facture in order to recover the difference between the market and 
 
 « Bernstein v. Meech, 130 N. Y. 354. 
 
 ' United States v. Behan, 110 U. S. 338. Had he proved the profits, 
 he could have recovered under both heads. This is the leading modern 
 case in this country on the general rules governing the measure of damages 
 in Contract. In the first edition of this hand-book it was erroneously 
 stated that plaintiff could not recover under both heads. The same error is 
 apparently embodied in the opinion of the court in Worthington v. Gwin, 
 119 Ala. 44; 43 L. R. A. 382. 
 
 ' Masterton v. The Mayor of Brooklyn, 7 Hill, 61. 
 
DAMAGES IN CONTRACT. 227 
 
 the contract price. He is entitled to recover at once the profit which 
 the contract would have yielded, i. e., the difference between the 
 contract price and the cost of production.' 
 
 (e) Breach of contract to employ plaintiff in insurance business 
 for percentages. Expenditures and also anticipated profits may 
 be recovered based, as to new business, on past business secured; 
 as to renewals, on actual estimates.^ 
 
 (/) A. leases premises to B., knowing that he means to occupy 
 them as a drug shop. Before the time for taking possession, B. has 
 fixtures for the shop made. The lease contains a covenant for quiet 
 enjoyment; but B. cannot obtain possession, the tenant in posses- 
 sion having previously got a lease from A. B. sells the fixtures, 
 obtaining less than cost, and having also purchased a perishable 
 stock of goods (which purchase, however, was not necessary), is 
 compelled to sell these at a loss. In this case the ordinary measure 
 of damage would be the difference between the rent reserved and 
 the actual rental value of the premises for the term. But A. may 
 also recover the loss on the fixtures, though not on the drugs, for 
 the defendant could not have anticipated it.' 
 
 (jf) An executory contract with a corporation requiring con- 
 struction work and the expenditure of money, etc., is terminated by 
 the dissolution of the corporation for insolvency. The contractor 
 is entitled to compensation for services rendered, for actual outlay,, 
 including any reasonable outlay to avoid loss, and expenses in- 
 curred, subject to deduction for payments made him, and the value 
 of property on hand.* 
 
 With regard to implied contracts the question of damages 
 presents itself in several different aspects : 1. Where there has 
 been an express contract, but the consideration has failed. 
 2. Where there is no express contract whatever. 3. Where 
 there has been a part perfonnance of an express contract. 
 Again, in the latter case the plaintiff may or may not be in 
 default. 
 
 In the first case the contract is on its face a contract for a 
 
 > Gardner v. Deeds, 116 Tenn. 128; 4 L. R. A. (n. s.) 740. 
 ' Wells V. National Life Asso. of Hartford, 39 C. C. A. 476; 99 Fed- 222; 
 63 L. R. A. 33. 
 
 ' Friedland v. Myers, 139 N. Y. 432. 
 
 * Griffith V. Blackwater B. & L. Co., 65 W. Va> 604; 6a L. R.. A. 124 
 
228 ELEMENTS OP THE LAW OF DAMAGES. 
 
 valuable consideration; but the consideration may wholly fail, 
 e. g., an article sold may turn out to be wholly valueless; or it 
 may have been originally good, but before the contract is 
 executed may have become worthless. Here the party who has 
 parted with the consideration may return the property and 
 recover back the money paid; and the measure of damages is 
 said to be the amount of money paid, with interest.' The 
 original express contract having come to an end, the relation of 
 the parties is simply that one has received from the other money 
 for which he has given no return; hence the law implies a 
 promise to repay. The case is really that of a breach of im- 
 plied contract to pay money. The action at common law was 
 in general assumpsU. 
 
 Rule. 
 
 67. Where, on total failure of consideration^ the party entitled 
 to the benefit of a contract rescinds, the measure of 
 damages is the consideration, with interest. 
 
 In the second case the plaintiff recovers upon what were 
 known as the common counts, e. g., as much as his labor was 
 worth, the value of the goods bought, etc. This is the entire 
 benefit of the contract so far as he is concerned. Indeed, properly 
 speaking, the action is for the breach of the promise which the 
 law implies that the defendant shall pay for the goods or services 
 what they are reasonably worth. Sometimes there has been an 
 agreement which has turned out wholly void, e. g., under the 
 Statute of Frauds; the plaintiff is here, however, in many 
 jurisdictions, allowed to recover for services performed on 
 a quantum meruit? In such a case any benefits received under 
 it will, on principles often stated, reduce the damages. 
 
 Rule. 
 
 58. In an action upon implied contract to recover for services 
 rendered or benefit conferred, the measure of damages is 
 the value of the services or benefit. 
 
 > Tyler v. Bailey, 71 111. 34; James v. Hodsden, 47 Vermont, 127. 
 ' Goodloe V. Goodloe, 116 Tenn. 252; 6 L. R. A. (n. s.) 703. 
 
damages in contract. 229 
 
 Illustrations. 
 
 (o) A. is appointed by B. as keeper of property under attach- 
 ment. In an action on a quantum meruit A. recovers the value of 
 his services. The fact that B. received no benefit from the services 
 does not affect the measure of recovery.' 
 
 (b) An agreement, not in writing, to convey land in considera- 
 tion of services to be rendered is partly carried out, and possession 
 is transferred. The measure of damages is the value of the services, 
 less the value of the benefits derived from the possession.^ 
 
 (c) A. sues B. for the value of his minor son's services while 
 in B.'s employment. The measure of his recovery is the fair value 
 of the services to B.' 
 
 In Fuller v. Rice * it is said that in cases of contract void 
 under the Statute of Frauds the contract rate (for services) 
 governs. The opinion is by Cooley, J. No reason, however, is 
 given; and clearly if the contract rate governs, the action is 
 not upon an implied contract at all. The contract may no 
 doubt be resorted to to furnish evidence on the subject of the 
 value of the services, and such is the rule generally laid down.' 
 
 In the third case, when there has been a part performance of 
 an express contract, and plaintiff is not in default, but has been 
 prevented from continuing by defendant, he has two rights of 
 action : he may sue on the contract for a breach of it, in which 
 case he may recover either his losses, or profits (if capable of 
 proof), as explained above, or he may waive the contract, and 
 recover upon the common counts.* In ascertaining the value 
 of what he has done, the contract rate is, as before, evidence. 
 When neither party is in default, the plaintiff can, of course, 
 have no right to waive the contract, and the recovery is limited 
 by the contract rate. 
 
 • Stowe V. Buttrick, 125 Mass. 449. 
 " Ham i;. Goodrich, 37 N. H. 185. 
 
 ' Weeks v. Holmes, 12 Gushing, 215. Cf. Gulberson v. Alabama Con- 
 struction Go., 127 Ga. 599; 9 L. R. A. (n. s.) 411. 
 
 * 52 Mich. 435. 
 
 » Browne on the Statute of Frauds, § 126; Emery v. Smith, 46 N. H. 
 151; Cadman v. Markle, 76 Mich. 448. 
 
 " Valente v. Weinburg, 80 Conn. 134; 13 L. R. A. (n. b.) 448. 
 
230 elements of the law of damages. 
 
 Rules. 
 
 59. When there has been a partial performance of a contract, 
 
 and full performance is prevented by the wrongful act 
 of the defendant, the plaintiff's measure of damages is 
 at his election on the contract, or the value of what he has 
 done. 
 
 60, // fidl performance is prevented withovi fault of either 
 
 party, the measure of damages is the value of what has 
 been done, limited by the contract rate. 
 
 Illustrations. 
 
 (a) The contract is with a company to recover whatever is worth 
 saving from a sunken vessel. The plaintiff is wrongfully prevented 
 from fully performing, and sues specially upon the breach, and also 
 ■upon the common counts, to recover what his services are reason- 
 ably worth. At the close of the testimony he may elect to recover 
 upon the latter, though in excess of the contract rate.' 
 
 (6) The contract is for the superintendence of engineering works ; 
 the superintendent is to receive one-third of the profits. After a 
 considerable portion is done he dies, and the work is completed at 
 a large profit. His compensation is ascertained by taking one-third 
 of such a proportion of the whole profits as the cost of the work 
 done at the time of his death bears to the entire cost.^ 
 
 ^ (c) The prosecution of work under a contract is lawfully stopped 
 by the pubUc authorities. The contractor recovers at the contract 
 rate for the work already performed.' 
 
 (d) Threats of violence by strikers excuse a workman from con- 
 tinuing work. He can recover for labor actually performed (limited 
 by the agreed rate), less any damages resulting to the employer 
 from the breach of contract.* 
 
 * Hemminger v. Western Assurance Co., 95 Mich. 356. 
 
 * Clark V. Gilbert, 26 N. Y. 279. 
 
 ' Heine v. Meyer, 61 N. Y. 171. In case of refusal to perform on one 
 side, and inability on the other, there is not only no proof of damage, but 
 even nominal damages seem superfluous, since the defendant might in turn 
 claim them from the plaintiff. Nelson v. Plimpton Fireproof Elevating Co., 
 55 N. Y. 481. 
 
 * Walsh V. Fisher, 102 Wis. 172; 43 L. R. A. 810. 
 
DAMAGES IN CONTRACT. 231 
 
 It should be understood that under the second of the two 
 rules given above, neither party being at fault, the plaintiff is 
 really paid for what he has done under the contract. This is 
 the exact benefit of the contract of which he has been deprived. 
 
 Where the plaintiff performs only in part, without excuse, he 
 obviously has no rights under the contract, for the breach is his. 
 Nevertheless, on the general equitable principle governing cases 
 in which one confers a benefit upon another, which the latter 
 voluntarily receives and retains, the plaintiff in most jurisdic- 
 tions is allowed to recover upon a quantum meruit. But inas- 
 much as he is in default, and his breach may have caused 
 damage to the defendant, — e. g., in making full performance 
 more expensive, — the defendant's claim may reduce the 
 plaintiff's.' 
 
 In actions of tort the measure of recovery is mainly dependent 
 on the nature of the right invaded; so in contract it is mainly 
 dependent on the nature of the agreement violated. 
 
 ' Britton v. Turner, 6 N. H. 481; Union Bank v. Blanchard, 65 id. 21; 
 KeUy V. Town of Bradford, 33 Vt. 35. 
 
CHAPTER XVIII. 
 
 BONDS, LIQUIDATED DAMAGES, AND ALTERNATIVE CONTEACTS. 
 
 Since the first edition of this book two important cases 
 have been decided, one in England and one in the United States, 
 which put the subject of Uquidated damages in a somewhat new 
 light, and may be expected to have a considerable effect upon 
 the further development of the law on this subject. In making 
 their scope and effect clear, it will perhaps be most convenient 
 first to restate the law as explained in the last edition, and then 
 to give an account of these later decisions. 
 
 In most contracts the parties enter into stipulations with a 
 view to their performance only, and in case of non-performance 
 the law determines the measure of damages. In some, however, 
 they go further, and arrange in advance what the amount of 
 compensation shall be in case of breach. Sometimes this is 
 done by means of an instrument pecuKar to our law, called a 
 penal bond, i. e., a sealed obligation to the breach of which a 
 penalty is attached ; sometimes by means of an ordinary contract. 
 
 At common law one of the forms of action was that of debt on 
 bond. The action of debt lay only to recover a sum certain, and 
 until comparatively recent times the law did not permit the tak- 
 ing of interest for money. Hence if A. owed B. money with 
 arrears of interest, while by bringing his action of debt he could 
 recover the principal sum, he was without remedy as to the in- 
 terest. It was probably in order to obviate this difficulty * that 
 the bond was originally introduced in England. It is still in 
 use to-day with us, though the object for which it was intro- 
 duced has long since been secured by other means. 
 
 In a penal bond the obligor binds himself to pay a certain sum 
 of money at a certain time to the obligee. This is called the 
 
 » Kames' Prin. of Eq., Bk. III. ch. ii. p. 279 (4th ed. p. 422). 
 
BONDS, LIQXHDATED DAMAGES, ALTERNATIVE CONTRACTS. 233 
 
 penalty. By another clause it is stated that the condition of the 
 obligation is such that, if a lesser sum of money (frequently half 
 the first amount) is paid, or some particular act performed, the 
 obligation itself shall be void. At common law, under this pe- 
 culiar form of contract, if the condition was not strictly com- 
 plied with at the date fixed, the penalty became the debt, and 
 could be sued for at law in an action of debt. In this way any 
 rate of interest could be provided for, the principal sum being 
 mentioned in the condition, the penal sum being any greater 
 sum that the parties chose to agree upon. It should be noticed 
 that, if the condition * was not strictly complied with, the mo- 
 ment the day passed the penalty became the debt, and neither 
 payment nor tender afterwards would avail. The same was 
 true if the condition were for something other than the payment 
 of money. 
 
 It was soon found in practice that the introduction of the 
 penal bond produced much injustice, throwing debtors com- 
 pletely into the hands of their creditors, and equity began to 
 grant relief. In equity it was held that the real agreement of 
 the parties was the condition of the bond, not the penalty. The 
 practice of "relieving against the penalty " being once estab- 
 lished in the Court of Chancery, the common-law courts found 
 their early system superseded, and introduced the practice of 
 staying proceedings upon the bringing into court of the princi- 
 pal debt mentioned in the condition, with interest and costs. 
 This practice was confirmed by a statute to the same effect,^ 
 which has been followed in this country.* The defect of these 
 early statutes was that the obligee was still in law entitled to 
 judgment for the whole amount of the penalty. More modern 
 statutes overcame this last difficulty by compelling the plaintiff 
 in an action upon a bond to assign breaches, or, in other words, 
 to state the real cause of action for which he sought redress, and 
 
 ' Compare the very serious effect of the breach of a condition in a deed 
 of land. Such a breach works a forfeiture of the estate, which reverts to the 
 heirs of the grantor; while a mere breach of covenant in a deed merely 
 sounds in damages. 
 
 ' 4 Anne, ch. 16, §§12 and 13. 
 
 » E. g., 2 R. S. N. Y. 353, §§ 12, 13; Co. Civ. Proo. § 1915. 
 
234 ELEMENTS OP THE LAW OP DAMAGES. 
 
 providing that while, on a recovery by the plaintiff, judgment 
 should still be entered for him for the whole penalty of the 
 bond, still that a further judgment should issue that plaintiff 
 have execution to collect the amount of damages actually as- 
 sessed by the jury.* By this process the original severity of 
 the law has been done away, the consequences of suits on 
 bonds made to conform to those in other actions, and dam- 
 ages in them limited to compensation. 
 
 A distinction is to be noticed between this species of instru- 
 ment and one closely resembling it. In the penal bond, strictly 
 so called, the agreement is to pay a fixed sum of money, with a 
 collateral provision for defeasance, if some smaller sum be .paid, 
 or if some particular act be done. There is no promise or cove- 
 nant to pay the smaller sum, or perform the particular act. 
 Hence, at common law, as we have seen, no action could be 
 maintained except for the full penal sum, this being fixed as an 
 absolute sum to be received in Ueu of performance. It followed 
 that the amount of damages recoverable could never exceed 
 the penalty. But in a great variety of other agreements, besides 
 a provision for a penalty, there are covenants upon which an 
 action may be brought, and if a provision for a penalty is intro- 
 duced into such an agreement this has never been regarded as 
 a Umit of compensation; but for breach of the agreement dam- 
 ages may be recovered beyond the penalty.'' 
 
 The two rules on this subject may be stated in the following 
 form : — 
 
 Rule. 
 
 61. In actions on penal bonds, conditioned for the pay- 
 ment of money or the performance of some collateral 
 act, the recovery is limited to the amount of the 
 penalty. 
 
 > 8 & 9 Wm. III. ch. xi. s. 8; N. Y., Rev. of 1813, 1 R. L. 618, s. 7; 
 2 R. S. 353; Co. Gv. Proc. b. 1915; Mass. Pub. Stat. ch. 171, ss. 9-13. 
 
 » Noyes v. Phillips, 60 N. Y. 408; Addison, Contr. (9th ed.) 267; 
 Graham v. Bickham, 4 Dall. 149; Harrison v. Wright, 13 East, 343; 
 Haggart v. Morgan, 5 N. Y. 422; Thompson v. Rose, 8 Cow. 266. 
 
bonds, liquidated damages, alternative cqjjtracts. 235 
 
 Illustration. 
 
 To secure damages to be paid for its right of way through their 
 property, a railroad company gives a penal bond to nine persons in 
 13,000. Each obhgee can only recover his respective share of this 
 sum, even though the damages assessed amount to more.' 
 
 Rule. 
 
 62, If a co7Uract contains covenants or agreements, though 
 
 expressly secured by a penalty, it is not a penal bond, 
 and the plaintiff, suing upon the covenants, recovers 
 his fuU loss, whether greater or less than the penalty. 
 
 Illustration. 
 
 ' A memorandum for a charter-party contains an agreement for 
 a voyage, and concludes "penalty for non-performance £1,300." 
 On breach of the agreement the plaintiff is not Umited to the 
 penalty.* 
 
 In actions on bonds the usual limit of recovery is, as already 
 explained, the penalty. Statutory undertakings furnish no ex- 
 ceptions to this rule. These are given to secure a party to a 
 suit against damages and costs resulting from an attachment, 
 injunction, etc., if wrongfully issued or used. The general 
 principle is that in the action on the bond the plaintiff recovers 
 his actual loss. 
 
 Rule. 
 
 63. In an action upon a statutory undertaking the measure of 
 
 damages is the actual loss ivithin the limit of the penalty. 
 
 Illustrations. 
 
 (a) In a suit commenced by attachment the defendant procures 
 a dissolution of the attachment by giving bond, conditioned to re- 
 
 » St. Louis, A. & R. I. R. R. Co. v. Coultas, 33 lU. 188. 
 ' Harrison v. Wright, 13 East, 343. 
 
236 ELEMENTS OF THE LAW OP DAMAGES. 
 
 turn the property if the plaintiff recovers judgment. The defendant 
 is prevented from returning it by a second attachment, and the 
 plaintiff recovers judgment in the suit. His measure of damages 
 is the amount of the judgment and costs.' 
 
 (6) In an action to determine the rights of the parties to a wall, 
 alleged by plaintiff to be a party-wall, it appears that defendants 
 are tearing down the wall for the purpose of erecting a new building. 
 A temporary injunction is granted against this, and a delay of many 
 years is occasioned in the completion of the building. In an action 
 on an injunction bond for $5,000, the items of damage properly 
 allowable are: 1. Loss of rent. 2. Increased cost of building. 
 3. Counsel fees on motion to dissolve injunction. These, with in- 
 terest, amount to $9,731.12. The recovery is for $5,000.^ 
 
 (c) Plaintiff, before suing out an attachment, gives a bond. The 
 property attached is removed and detained for several months, 
 when the attachment is dissolved. In an action on the bond the 
 measure of recovery is all costs and damages sustained through 
 the wrongful attachment, in the deprivation of the use of the prop- 
 erty, its loss, destruction, or deterioration.^ 
 
 (d) An injunction deprives the owner of the use of a portable 
 sawmill. The measure of damages on the bond to dissolve it is 
 the value of the use of the mill, and expenses for service during the 
 time it was kept idle.* 
 
 (e) Action on an injunction bond ; the amount collectible on the 
 judgment has been reduced in consequence of the injunction. This 
 is a proper element of damage.' 
 
 The same principle of equity which led to the substitution of 
 compensatory damages for the arbitrary penalty of the bond, 
 led to the conclusion that whenever a definite sum was named 
 as damages, an inquiry was necessary as to whether this must 
 be regarded as liquidated damages, properly speaking, or a 
 penalty (to be treated merely as security for compensatory 
 damages). The right to liquidate damages has always been 
 jealously watched by the courts; if it were not, precisely such 
 
 » Schuyler v. Sylvester, 28 N. J. L. 487. 
 
 ' Roberts v. White, 73 N. Y. 375. 
 
 ' Bruce v. Coleman, 1 Handy, 515. 
 
 * Wood V. The State, 66 Md. 61. 
 
 ' Stull V. Beddeo (Neb.), 14 L. R. A. (n. s.) 507.' 
 
BONDS, LIQUIDATED DAMAGES, ALTERNATIVE CONTRACTS. 237 
 
 unconscionable agreements as the original money bond might 
 be introduced ; and again, if parties might fix their own dam- 
 ages without supervision, the function of courts of justice in 
 establishing the measure of compensation would be seriously 
 hampered. There is in fact a good deal of resemblance between 
 the control of courts over the measure of damages and that 
 exercised by them over contracts themselves. As a general rule 
 parties are allowed to make what contracts they please ; but this 
 is subject to the restriction that they must not be unconscion- 
 able,' contra bonos mores, or against public policy. 
 
 Proceeding on this general principle the courts in construing 
 contracts for the liquidation of damages have endeavored as far 
 as possible to harmonize the ordinary rules governing the inter- 
 pretation of contracts with the necessity of adhering to the 
 general principle of compensation. It must be observed at the 
 outset that the whole question is one, properly speaking, of in- 
 terpretation, and does not affect the ordinary rules governing 
 the measure of damages in any way. Whenever it appears in a 
 contract of sale, of hiring, etc., that the parties have agreed that 
 in the event of non-performance, one shall pay the other a fixed 
 sum of money, the only question to be determined is whether 
 this is Kquidated damages, or whether it is a penalty. In the 
 former case there can be no further inquiry into the measure 
 of damages; in the latter, the ordinary rules governing the 
 particular contract apply. And this question, being one of inter- 
 pretation, is for the court, not the jury. The rules of interpre- 
 tation, being binding upon the court, closely resemble rules of 
 law, such as are laid down for the guidance of juries. But the 
 circumstances in every case being different, they are not to be 
 regarded as absolute tests.* 
 
 The various canons pf interpretation which have been laid 
 down by the courts all assume that no one circumstance is 
 decisive upon the subject; for instance, it is perfectly well 
 settled that the solemn declaration of the parties that the sum 
 provided for is to be taken as a penalty or liquidated damages 
 
 > See Ogden v. Marshall, 4 Seld. 340. 
 
 ' Pye V. British Automobile C. &., Ld., [1906] 1 K. B. 425. 
 
238 ELEMENTS OF THE LAW OP DAMAGES. 
 
 is not conclusive if the character of the contract shows that 
 it would be improper so to regard it.' The principle to be 
 kept in view is the following : — 
 
 Rule. 
 
 64. Whenever the contract is svch that the amount of damages 
 
 for breach of it in accordance mth the ordinary rules of 
 law is easily established, a stipulated sum greatly dif- 
 fering from what would be the result of the application 
 of the legal rule, mil be taken to have been intended by 
 the parties as a penalty, whether termed such by them or 
 not. Otherwise the parties may stipulate their damages. 
 
 It is hardly necessary to say that the intention thus imputed 
 to the parties is not open to question. It is a sort of fiction in- 
 troduced because of another rule that courts must interpret 
 contracts in accordance with the intention of the parlies. As 
 in this case, the very object of the rules is to supersede the in- 
 tention of the parties, it is said that they must have intended 
 what the law holds to be the correct meaning. From this gen- 
 eral rule spring numerous subordinate rules, a brief examina- 
 tion of which will be useful in illustrating the subject. 
 
 Rule. 
 
 65. Where the stipulated sum is wholly collateral to the object 
 
 of the contract, being evidently inserted merely as 
 security, it is a penalty. 
 
 Illustrations. 
 
 (a) A building contract contains the clause "the said houses to 
 be completely finished" at a certain date, "under a penalty of 
 $1,000." This is a penalty.' 
 
 ' A fortiori the use of the tenn "penalty" or "liquidated damages" 
 cannot be conclusive. Diestal v. Stevenson, [1906] 2 K. B. 345. 
 " Tayloe v. Sandiford, 7 Wheaton, 13. 
 
BONDS, LIQUIDATED DAMAGES, ALTERNATIVE CONTBACTS. 239 
 
 (6) The plaintiff makes a written lease of land to the defendant, 
 who agrees to return the lease within ninety days or pay $3,000. 
 This is a penalty.' 
 
 (c) A. leases premises to B. at a yearly rent of $6,000, and B. 
 deposits with him a sum of $1,500, A. to hold the same as security 
 for the performance of the covenants, the same to be applied as 
 payment of rent on the last three months of the term, provided the 
 lease is not sooner terminated, in which case the $1,500 is to be 
 "forfeited and become the property of the party of the first part 
 absolutely." This is a penalty.* 
 
 Rule. 
 
 66. A sum of money to he paid on non-payment of a mveh 
 
 amaUer sum, or on delivery of something much less in 
 value, is a penalty. 
 
 Illustration. 
 
 Defendant as surety binds himself in the sum of $240 for the 
 performance by his principal of a contract to deUver two boatloads 
 of coal, the sum to be recoverable on failure to deliver either. This 
 is a penalty.' 
 
 It must be always borne in mind that these rules hinge upon 
 the theory of preventing the parties from agreeing upon what 
 the law regards as unfair compensation. But cessante ratione 
 cessat ipsa lex, and therefore where the larger sum is a legal 
 debt, but the debtor has the option of discharging it by payment 
 before a given date of a less sum, the payment of the larger sum 
 may be enforced after that date.* 
 
 Rule. 
 
 67. If the stiprulated sum is plainly disproportionate to the 
 
 injury, it is a penalty. 
 
 ' Burrage v. Crump, 3 Jones L. 330. 
 ' Chaude v. Shepard, 122 N. Y. 397. 
 " Curry v. Larer, 7 Pa. St. 470. 
 ' Thompson v. Hudson, L. R., 4 H. L. 1. 
 
240 ELEMENTS OF THE LAW OF DAMAGES. 
 
 Where a sum is agreed upon, not as a means of liquidating 
 the damages, but as a fine in addition to the damages actually 
 caused, it is a penalty and only the actual damages can be 
 recovered.' 
 
 In contracts for work and labor, — e. g., for railroad con- 
 struction, — when the contractor is paid in instalments as the 
 work progresses, it is frequently provided that a certain per- 
 centage of each monthly instalment is to be retained by the 
 other party, to be forfeited if the contract is not performed at 
 the time and in the manner provided. Obviously here the sum 
 may be in certain cases greatly disproportionate to the injury, 
 for the amount reserved increases as the work progresses; or, 
 in other words, as the risk from non-performance diminishes 
 the loss to the contractor increases. Hence in many jurisdic- 
 tions it is held that sums so reserved constitute a penalty.^ In 
 other courts, on account of the uncertainty of the extent of the 
 loss, such sums have been held to be liquidated damages.' The 
 matter depends, as in all other cases, very much upon the pre- 
 cise terms of the contract. 
 
 Illustration. 
 
 A contract for railroad construction provides for payments to 
 plaintiff upon estimates of the work as it progresses, with a re- 
 serve of fifteen per cent until the whole shall be completed and ac- 
 cepted. The contractor, without showing full performance, may 
 recover the reserve, less the amount of defendant's actual damages 
 from his breach of contract.* 
 
 Rule. 
 
 68. A sum fixed as security for the performance of a contract 
 containing a number of stipulations of wOely different 
 
 » Meyer v. Estes, 164 Mass. 457; 32 L. R. A. 283. 
 
 ' Savannah & C. R. R. Co. v. Callahan, 56 Ga. 331; Jemmison v. Gray, 
 29 la. 537; Potter v. McPherson, 61 Mo. 240; Dullaghan v. Fitch, 42 
 Wis. 679. 
 
 ' Elizabethtown & P. R. R. Co. v. Geoghegan, 9 Bush, 56; Geiger v. 
 Western Md. R. R. Co., 41 Md. 4; Easton v. Penna. & 0. Canal Co., 13 
 Oh. 79; see further Ranger v. Great Western Ry. Co., 27 E. L. & E. 35, 61. 
 
 * Dullaghan v. Fitch, 42 Wis. 679. 
 
t 
 
 BONDS, LIQUIDATED DAMAGES, ALTERNATIVE CONTRACTS. 241 
 
 importarwe, breaches of some of which are capable of 
 accurate valuation according to the ordinary legal 
 standard, and for any of which the stipulated sum is an 
 excessive compensaiion, is a penalty. 
 
 Illustrations. 
 
 (o) A. agrees with B. to act at his theatre and conform to its 
 rules, B. to pay him £3 6s. Sd. for every performance. The agree- 
 ment contains a clause that if either party fail to fulfil his contract, 
 or any part thereof, he shall pay the sum of £1000, as "liquidated 
 damages," and not as a '"penalty." This is a penalty.' 
 
 (b) By a clause in a charter-party the parties mutually bind 
 themselves, the ship, freight, and cargo, "in the penal sum of 
 estimated amount of freight" to the performance of all and every 
 of their agreements. .This is a penalty.^ 
 
 (c) A contract for the erection of buildings *iprovides that they 
 shall be completed by a given* date; that for every week's delay 
 after that date the contractor sha]4 forfeit' $10 per week ; that if 
 the contractors are prevented from completing the employer may 
 rescind ; that the moneys then already paid shall be considered the 
 full value of the work executed, together with other stipulations. By 
 a final clause, in case the contract is not in all things fully performed, 
 the contractors are to pay £1,000 as "liquidated damages." This 
 is a penalty.' 
 
 (d) A contract provides, among other tljlngs, that one of the 
 parties shall ^ve the other on a specifiedMiay a promissory note 
 for f 200, and on a subsequent day a bond and mortgage for^2,000 
 with interest. On failure to perform, the parties agree to pay one 
 to the other the sum of $500, as liquidated damages. The sum is a 
 penalty.* 
 
 (e) The stipulation is that $20,000 shall be paid for failure to 
 comply with the contract to remove a building within a certain 
 time. This is a penalty.' 
 
 ' Kemble v. Farren, 6 Bing. 141. 
 " Watts V. Camors, 115 U. S. 353, 
 ' In re Newman, 4 Ch. D. 724. 
 * Lampman v. Cochran, 16 N. Y. 275. 
 
 » Chicago Wrecking House Co. v. The United States, 45 C. C. A. 343 ; 
 106 Fed. 385; 53 L. R. A. 122. 
 
 16 
 
242 elements op the law of damages. 
 
 Rule. 
 
 69. A deposit or forfeit provided for breach of an entire agree- 
 
 ment, if reasonable in amouni, is liquidated damages} 
 
 Illustration. 
 
 A. agrees with B. to sell him a farm of about fourteen acres at 
 $450 per acre, acknowledging the receipt of 1500 on account of the 
 purchase-money, to be forfeited in case B. fails to complete. This 
 is liquidated damages.^ 
 
 Where the sum stipulated to be paid is the measure of damages 
 which would have governed the finding of the jury without an 
 express stipulation, all reason for holding it to be a penalty falls 
 to the ground, and even the use of the word "penalty" is 
 immaterial.* 
 
 Rule. 
 
 70. Where the damages for an entire breach are stipulated, and 
 
 there is notwithstanding a valid part performance, the 
 rule of liquidated damages has no applicaiion. 
 
 Illustration. 
 
 A. binds himself in $500 "liquidated damages" to convey to B. 
 on demand 3000 feet of land. He executes a deed, and it is after- 
 ward found that the land is some five hundred feet short. Here B., 
 having accepted the deed in part-performance, is only entitled to 
 recover the actual damages sustained.* 
 
 • In these cases the deposit is usually made in part perfonnance of the 
 contract. Wallis v. Smith, 21 Ch. D. 243; Reilly v. Jones, 1 Bing. 302; 
 Hinton v. Sparkes, L. R. 3 C. P. 161; Lea v. Whitaker, L. R. 8 C. P. 70; 
 Swift V. Powell, 44 Ga. 123; Mathews v. Sharp, 99 Pa. St. 560; EaWn v. 
 Scott, 70 Tex. 442. This rule is in harmony with the rule in case of breach 
 of agreement to sell real estate, when the vendee always recovers the de- 
 posit paid down to bind the bargain. 
 
 » Mathews v. Sharp, 99 Pa. St. 560. 
 
 » Durst V. Swift, 11 Tex. 273; Yenner i;. Hammond, 36 Wis. 277. 
 
 * Shute V. Taylor, 5 Met. 61. 
 
bonds, liquidated damages, alternative contracts. 243 
 
 Rule. 
 
 71. Where the contract calls for a cordinuous series of ads, and 
 
 a failure to perform any one is really a total breach, the 
 stipulated sum, if reasonable, may be recovered cm a 
 single breach. 
 
 Illustrations. 
 
 (o) A. agrees to refrain from the use of intoxicating liquors 
 during service in B.'s employment. On a single breach the 
 stipulated damages are recoverable.^ 
 
 (6) Bond for payment of f 100 to refrain from committing 
 acts forbidden by an injunction. This is liquidated damages.^ 
 
 Rule. 
 
 72. Where independently of the stipulaiion the damages wovM 
 
 be uncertain, or incapable, or very difficult of ascertain^ 
 meat, they mxiy be liquidated. 
 
 Illustrations. 
 
 (a) The plaintiff and other landowners subscribe towards the 
 building of an hotel by defendant near their land; the defendant 
 agrees, in case of non-performance, to pay 120,000. This is Uqui- 
 dated damages.^ 
 
 (6) An assignor of a mortgage agrees with his assignee that on 
 foreclosure of a prior mortgage covering the same and other prem- 
 ises, the decree shall contain a provision that the other premises 
 shall be sold first, and the proceeds applied to the prior mortgage, 
 and stipulates that if this be done, he will pay the assignee a specific 
 sum, equal to the amount of the mortgage. This is liquidated 
 damages.* 
 
 (c) A. who is owner of a cheese factory, and engaged in the 
 manufacture of several kinds of cheese by a secret process, agrees 
 with B. and C. to sell them the factory, good-will, trade-marks, etc., 
 to communicate to them only the secret of the manufacture, and 
 
 » Keeble v. Keeble, 85 Ala. 552. 
 
 ' Strickland v. Williams, [1899] 1 Q. B. 382, 
 
 " Chase v. Allen, 13 Gray, 42. 
 
 • Cowdry v. Carpenter, 1 Abb. Ct. of Ap. Dec. 445. 
 
244 ELEMENTS OF THE LAW OF DAMAGES. 
 
 after a certain date to refrain from making or vending said cheese 
 and from using tlie trade-marks or name, "under the penalty of 
 $5,000," which is also termed "stipulated damages." This is 
 liquidated damages.' 
 
 (d) A. enters B.'s employment, agrees to serve him diligently, 
 remain with him a certain number of years, assist him in his trade, 
 keep his trade secrets, etc., and binds himself "in the sum of $3,000, 
 as liquidated damages, and not by way of penalty or otherwise," 
 for the performance of his agreements. This is an agreement for 
 liquidated damages.^ 
 
 (e) A. agrees to sell an hotel for $14,000, of which $3,000 is to be 
 paid at a specified time, possession of part to be delivered imme- 
 diately. The parties agree to "forfeit" $500 in case of non-com- 
 pliance by either. This is liquidated damages.' 
 
 (/) A. promises B. that he will not marry any person except 
 herself; agreeing at the same time that if he does marry any one 
 else, he will pay B. $1,000. This is liquidated damages.* 
 
 (g) Under a statute providing for the publication of reports of 
 decided cases, a contract made by State officers with a publisher 
 requires him to furnish each volume at the contract price to any 
 other law-book seller in quantities not exceeding one hundred copies 
 to each applicant ; and that for any failure to comply, he shall for- 
 feit the sum of $100, "not as a penalty, but as liquidated damages." 
 This is Hquidated damages.* 
 
 (h) A contract of service provides that in case of breach by the 
 employee the damages recoverable shall be fifteen days' wages. 
 This is hquidated damages." 
 
 (i) In a contract for the sale of logs it is provided that 15 cents 
 per 100 feet shall be retained from the contract price upon all logs 
 not delivered by a specified date. The actual damages not being ' 
 determinable by any known rule, this is liquidated damages.' 
 
 The application of the foregoing rules to cases of contracts for 
 the sale or exchange of property is involved in some confusion. 
 
 ' Tode V. Gross, 127 N. Y. 480. 
 
 ' Bagley v. Peddie, 16 N. Y. 469. 
 
 ' Streeper v. Williams, 48 Pa. St. 450 
 
 ' Lowe V. Peers, 4 Burr. 2225. 
 
 ' Little V. Banks, 85 N. Y. 258. 
 
 Walsh V. Fisher, 102 Wis. 172; 43 L. R. A. 810. 
 
 ' Kilboume v. Burt (& Brabb Lumber Co., Ill Ky. 693; 55 L. R. A. 275. 
 
BONDS, LIQUIDATED DAMAGES, ALTERNATIVE CONTRACTS. 245 
 
 There seems to be no reason, on principle, inasmuch as the dam- 
 ages are in such cases apt to be very uncertain, why the parties 
 should not fix a reasonable sum in liquidation of them in advance. 
 And so, in the case of an agreement for the conveyance of real 
 estate for the sum of $4,000, an agreement that either party in 
 default shall pay the other $1,000 has been held an agreement 
 for liquidated damages.' 
 
 In New York, however, in cases of sales of real estate, owing 
 to the existence of a peculiar rule of damages, the matter has 
 been decided the other way. The ordinary measure of damages, 
 as we shall see when we come to consider contracts relating to- 
 real estate, in case of the failure of a vendee of land to accept a 
 deed, is the difference between the price the vendor was to have 
 received, and the value of the land left on his hands. In New 
 York, however, it has been held that, on tender of a deed by a 
 vendor, and refusal by the vendee, the former recovers the whole 
 price, notwithstanding that the title does not pass. This, though 
 on principle it seems wrong, makes the amount of damages per- 
 fectly certain from the outset. Hence, where such a contract pro- 
 vided that for failure to carry out an agreement -of this nature, 
 either party should forfeit the sum of $500, this was held to be a 
 penalty, for the court remarked "the damages are capable of 
 being certainly known and estimated." ^ 
 
 Rule. 
 
 73. Agreements liquidating the damages for carrying on a 
 trade, business, or 'profession within certain limits, or 
 imthin a specified period, are valid. 
 
 Illustrations. 
 
 (a) A. sells B. a newspaper establishment, with subscription 
 list and good-will for $3,500, B. a^eeing not to establish any news- 
 paper within certain limits, and in case of breach to pay $3,000, as 
 liquidated damages. The $3,000 are liquidated damages.^ 
 
 ' Mead w. Wheeler, 13 N. H. 351; Gammon v. Howe, 14 Me. 250; Max- 
 well V. Allen, 78 Me. 32. 
 
 " Richards v. Edick, 17 Barb. 260. 
 ' Dakin v. 'VrilliamB, 17 Wend. 447. 
 
246 ELEMENTS OF THE LAW OP DAMAGES. 
 
 (6) A. enters the service of a banking company, and executes 
 a bond in the penial sum of £1,000, conditioned for the performance 
 of his duties, and also to pay £1,000 as liquidated damages, in case 
 he shall, at any time within two years after leaving its service, ac- 
 cept any employment in any other bank within twenty miles. This 
 is an agreement for liquidated damages.' 
 
 Rule. 
 
 74. Damages for delay in the performance of a contract, if 
 reasonable, may be stipulated. 
 
 Illustrations. 
 
 (a) A. agrees with B. to perform certain work within a limited 
 time, or to pay a stipulated sum weekly for such time afterwards 
 as it shall remain unfinished, and executes a bond with condition 
 for the due performance of the work. Such weekly payments are 
 liquidated damages.^ 
 
 (b) In a contract between plaintiffs and E., the latter agrees to 
 raise a house to a new grade and pay $150 per week for any delay. 
 The rental value of the house is 125 a month. This is a provision 
 for a penalty.' 
 
 (c) A. agrees to furnish his biography to B. for publication 
 within a time fixed, and for every day's delay to pay $165. This 
 is a penalty.* 
 
 (d) A contract to furnish engines for $8,000 within a fixed time 
 contains a provision that the contractor shall forfeit $100 for every 
 day's delay. This is a penalty.^ 
 
 (e) A. contracts to build a grand stand for a race course to cost 
 $133,000, agreeing to pay $100 a day for every day's delay.. This 
 is liquidated damages." 
 
 ' Nat. Prov. Bk. of England v. Marshall, 40 Ch. D. 112. This case 
 decides that there is an alternative remedy by way of injunction in equity. 
 
 ' Fletcher v. Dyche, 2 T. R. 32. 
 
 ' Clements v. Schuylkill, etc., R. Co., 132 Pa. St. 445. 
 
 * Greer v. Tweed, 13 Abb. Pr. (n. s.) 427. 
 
 » Colwell V. Foulks, 36 How. Pr. 306. 
 
 « Monmouth Park Ass'n v. Wallis Iron Works, 55 N. J. L. 132. For 
 other contracts of the same kind, see Duckworth v. Alison, 1 M. & W. 412; 
 Legge V. Harlock, 12 Q. B. 1015; Law v. Local Board of Redditch, [1892] 
 1 Q. B. 127; Ward v. Hudson R. Building Co., 125 N. Y. 230; Malone v. 
 
BONDS, LIQXnDATED DAMAGES, ALTERNATIVE CONTRACTS. 247 
 
 (/) Contract for the building of torpedo boat for the Span- 
 ish government, with clause providing for payment of five hun- 
 dred pounds per week for delay in delivery. This is liquidated 
 damages.* 
 
 It should be noticed that these contracts always contemplate 
 mere delay. When the contractor wholly abandons the work, the 
 party entitled to the benefit of the stipulation cannot lie by and 
 hold him at the given rate for ever. In such a case damages 
 which might in the case of a trifling delay have been reasonable 
 enough become by mere lapse of time preposterous. And when 
 the result is unconscionable, the courts are inclined to treat the 
 question as one of penalty.* 
 
 It may perhaps be suggested that when the sum would in the 
 case of ordinary delay be fair, it would be more in accordance 
 with principle to hold that the clause has no appUcation to the 
 case of total abandonment by the contractor, and that we are 
 therefore necessarily remitted to the operation of the ordinary 
 rules of law. 
 
 Rule. 
 
 75. Provisions stifuUding the damage for abandonment of con- 
 tract of service, if reasonable, are valid. 
 
 Illustrations. 
 
 (a) A contract of hiring contains a condition for two weeks' 
 notice by the employee, and that for failure to give such notice, 
 or to continue work during the two weeks, she shall forfeit a sum, 
 out of any wages due, to be determined by the class of her employ- 
 ment. The class to which she belongs is that of those receiving 
 from fifty cents to one dollar per day. For this class the damages 
 are $10. This is a valid agreement for stipulated damages.^ 
 
 City of Philadelphia, 147 Pa. St. 416. In Law v. Local Board of Redditch, 
 the ground given is that the damages are payable for the breach of a single 
 agreement, but the reason usually given is uncertainty. 
 
 ' Clyde Bank E. & S. Co. v. Castaneda, [1905] A. C. 6. 
 
 ' Hahn v. Horstman, 12 Bush, 249. 
 
 ' Tennessee Mfg. Co. v. James, 91 Tenn, 154. 
 
248 ELEMENTS OF THE LAW OP DAMAGES. 
 
 (b) A similar forfeiture covers all the wages due at the time of 
 leaving. This is a penalty.* 
 
 Rule. 
 
 76. Agreements to liquidate damages for the purpose of evading 
 
 provisions of law. are penalties. 
 
 Illustration. 
 
 A bond provides that if certain bills are not accepted, the obligor 
 will pay the amount of them, with interest at ten per cent by way 
 of penalty. This is a penalty; the usury statute does not allow 
 such interest.^ 
 
 Private corporations sometimes give bonds in substantial 
 amounts to secure the performance of duties undertaken by 
 them in consideration of franchises conferred. These are usu- 
 ally held to be collectible in case of default in full, either on the 
 ground that the damages are uncertain or incapable of proof, 
 or that the sum is in the nature of a staltutory penalty for the non- 
 performance of a duty enjoined by law.' The Legislature of a 
 State grants a franchise to a railroad, the act not to go into 
 effect unless the company shall file a bond in $100,000 to 
 complete the road before a given date. The company files 
 the bond but fails to build the road. The State recovers the 
 full amount of the bond.* 
 
 Rule. 
 
 77. Where liquidated damages are allowed, interest on the sum 
 
 from the time of the breach is recoverable.^ 
 
 ' Schrimpf v. Tennessee Mfg. Co., 86 Tenn. 219. 
 
 ' Orr V. Churchill, 1 H. Bl. 227. 
 
 ' Salem v. Anson, 40 Ore. 339; 56 L. R. A. 169. 
 
 * Clark V. Barnard, 108 U. S. 436. 
 
 • This is not the rule in England, nor in all American States. Interest 
 is allowed in New York and New Hampshire. Mead v. Wheeler, 13 N. H. 
 351; Little v. Banks, 85 N. Y. 258; contra, Devereux v. Burgwin, 11 Ired. 
 L. 490; Hoagland v. Segur, 38 N. J. L. 230; but on principle it should 
 be allowed wherever interest is allowed on liquidated demands generally. 
 
bonds, liquidated damages, alternative contracts. 249 
 
 Liquidation by Valuation and Pre-ascertainment. 
 
 The following cases are those referred to at the opening of the 
 chapter. In Sun Printing and Publishing Ass'n v. Moore,' the 
 Supreme Court of the United States had before it the following 
 facts: The Sun Association hired a yacht to be used as a de- 
 spatch boat for the purpose of gathering news during the Span- 
 ish-American war. The Sun Association agreed to return the 
 vessel in good order at the end of the term, and it was provided 
 that for the purpose of the contract, the value of the yacht should 
 be taken at the sum of $75,000. The yacht having been wrecked, 
 the owners sued upon the contract to recover the full value as 
 fixed by the contract. The court held that this was the proper 
 measure of damages, and in the course of a thoroughly con- 
 sidered opinion and on a full review of the cases used the 
 following language: — 
 
 The law does not limit an owner of property, in his dealings 
 with private individuals, respecting such property, from affixing 
 his own estimate of its value upon a sale thereof, or on being 
 solicited to place the property at hazard by delivering it into the 
 custody of another for employment in a perilous adventure. If 
 the would-be buyer or lessee is of the opinion that the value 
 affixed to the property is exorbitant, he is at liberty to refuse to 
 enter into a contract for its acquisition. But if he does contract 
 and has induced the owner to part with his property on the 
 faith of stipulations as to value, the purchaser or hirer, in the 
 absence of fraud, should not have the aid of a court of equity or 
 of law to reduce the agreed value to a sum which others may 
 deem is the actual value. ^ 
 
 In Clyde Bank E. & S. Co. v. Castaneda,' the House of Lords 
 had before it a contract for the building of a torpedo boat for the 
 Spanish Government, which contained a clause providing for 
 payment of £500 per week for delay in delivery. This was held 
 to be liquidated damages. In the course of his decision the 
 Lord Chancellor said: — 
 
 » 183 U. S. 642. ' Md. p. 673. » [1905] A. C. 6. 
 
250 ELEMENTS OF THE LAW OP DAMAGES. 
 
 It is obvious on the face of it that the very thing intended to be 
 provided against by this pactional amount of damages is to avoid 
 that kind of minute and somewhat difficult and complex system 
 of examination which would be necessary if you were to attempt 
 to prove the damage. As I pointed out to the learned counsel 
 during the course of his argument, in order to do that properly 
 and to have any real effect upon any tribunal determining that 
 question, one ought to have before one's mind the whole adminis- 
 tration of the Spanish Navy — how they were going to use their 
 torpedo-boat destroyers in one place rather than in another, and 
 what would be the relative speed of all the boats they possessed 
 in relation to those which they were getting by this agreement. 
 It would be absolutely idle and impossible to enter into a question 
 of that sort unless you had some kind of agreement between the 
 parties as to what was the real measure of damages which ought 
 to be applied.* 
 
 Lord Robertson, using the language of one of the judges 
 below, speaks of the payments specified as being "a genuine 
 pre-estimate of the creditor's probable or possible interest in the 
 due performance of the principal obligation." ' 
 
 In the light of these cases it would seem as if some of the older 
 decisions taking a technical view of the canons of interpretation, 
 could no longer be regarded as conclusive. As pointed out in the 
 text above, those canons are never to be regarded as positive 
 rules of law. 
 
 Alternative Contracts. — The contracts just considered 
 are contracts providing that in case of breach the damages shall 
 be liquidated in a certain way. In a certain sense the party in 
 fault has the alternative to perform, or pay, either the stipulated 
 sum, or (in case this is held to be a penalty) the legal rate of 
 damages. But this sort of alternative exists in every contract. A 
 
 ' [1905] A. C. 11. It should be observed that this was a Scotch case and 
 that Lord Halsbury assumes the Scotch and English law to be the same. 
 C/. Com. of Public Works v. Hills, [1906] A. C. 368, in which a clause fixing 
 damages for completion of a railway, was held to be a penalty, as not 
 being a pre-estimate of damages by agreement. 
 
 » Ibid. p. 19. 
 
BONDS, LIQUIDATED DAMAGES, ALTERNATIVE CONTRACTS. 251 
 
 true alternative contract is one which provides for performance 
 in the alternative, where an option is given to do one or the other. 
 Here it is said that in case of breach the plaintiff should recover 
 compensation for the least beneficial alternative, on the ground 
 that had the defendant performed he would have taken upon 
 himself the discharge of the lesser burden.' Defendant promises 
 to pay $500 in Tennessee bank notes, Georgia bank notes, Ala- 
 bama bank notes, or notes of "good men." The measure of 
 damages is the specie value of the notes in which it would have 
 been most for the interest of the covenantor to have paid.^ 
 The principle of alternative contracts has been much dis- 
 cussed, but decisions directly in point are difficult to find. In 
 the leading case of Deverill v. Burnell ' the contract was that if 
 certain drafts were not paid at maturity the defendant should 
 either return the drafts or pay the plaintiffs the amount of them. 
 Bovill, C. J., thought that this was a strictly alternative contract, 
 that the defendant had an option, and that as the drafts were in 
 fact worthless, only nominal damages could be recovered. But 
 all the other judges agreed that the true meaning of the contract 
 was that of an absolute promise to return the bills, and if defend- 
 ant does not do so, to pay the amount of them. In a Massa- 
 chusetts case,* a physician agreed not to practise his profession 
 in a certain city so long as a purchaser of his business remained 
 in practice there, provided however, that he might resume prac- 
 tice after a certain time on paying to the purchaser $2,000. The 
 court held that this sum was not a penalty nor liquidated dam- 
 ages, but a price fixed for what the contract permitted him to do if 
 he paid; and that it would be "against common sense to say 
 that he could avoid the effect of thus having named the sum by 
 simply returning to practice without paying, and could escape for 
 a less sum if the jury thought the damage done the plaintiff by 
 his competition was less than two thousand dollars." It will be 
 seen that practically the result of cases like these is the same as in 
 a suit for liquidated damages. The real nature of contracts of 
 
 » Cockbum v. Alexander, 6 C. B. 791, 814. 
 
 ' Hixon V. Hixon, 7 Humph. 33. 
 
 » L. R. 8 C. P. 475. 
 
 ' Smith V. Bergengren, 153 Mass. 236. 
 
252 ELEMENTS OF THE LAW OF DAMAGES. 
 
 this description is lucidly explained by Bronson, J., in Pearson 
 V. Williams' Adm'rs.* 
 
 Another species of alternative contract is an agreement to pay 
 the amount of a claim in specific articles at a certain price. Thus, 
 where a note was given for $79.50 "on the first day of January, 
 in salt, at 14 shillings per barrel," this was held by the New York 
 Court of Errors to show an intention to give the party his election 
 to pay the same expressed in money, or in salt, and that defendant 
 having neglected to avail himself of the option, the instrument 
 became an acknowledgment of a debt for the sum named ; ^ the 
 rule of the least beneficial alternative was not applied. 
 
 A very common case of a true alternative contract is that of 
 the provision in fire insuraoce policies, that in case of loss the 
 insurer, instead of paying it in money, may rebuild or repair 
 on giving notice of his election to do so. Here, however, the 
 question of the least beneficial alternative does not arise, for upon 
 election and notice the first alternative disappears, and if the in- 
 surer does not go on, the rule of damages becomes the amount 
 necessary to repair or rebuild.' 
 
 In Deverill v. Burnell * Bovill, C. J., puts the case of a con- 
 tract to deliver a horse after a race, or pay £1,000. In that case 
 it is obvious that if the horse lost the race, it might be most ad- 
 vantageous to deliver him ; otherwise, if he won ; and in accord- 
 ance with the rule of the least beneficial alternative the plaintiff 
 would only recover the amount representing the better alterna- 
 tive for the defendant. But in the light of all the authorities we 
 have been considering, would this be the conclusion? More 
 probably the solution would be either, (1) the sum named is a 
 penalty; or (2) it is liquidated damages, or (3) on non-delivery 
 of the horse the agreement becomes a mere money contract. 
 Upon the whole, it must be said that the rule of the least bene- 
 ficial alternative has hitherto been hardly applied in practice. 
 It may be suggested that where a person binds himself either to 
 
 ' 24 Wend. 244 ; 26 id. 630. 
 ' Gleason v. Pinney, 5 Cow. 152; 5 Wend. 393. 
 
 » Morrell v. Irving Fire Ins. Co., 33 N. Y. 429; Am. Cent. I. Co. 
 V. McLanathan, 11 Kan. 533. 
 « L. R. 8 C. P. 475, 481. 
 
BONDS, LIQUIDATED DAMAGES, ALTERNATIVE CONTRACTS. 253 
 
 do some act or pay money, as a general rule, upon his neglect to 
 do the act, the obligation to pay becomes according to the com- 
 mon understanding of mankind absolute, and the fact that it 
 might have been less burdensome for him to do the act, seems 
 no reason why he should first neglect to do it, and then claim 
 that the alternative obligation to pay the sum of money is of no 
 effect. Such a construction, in cases of non-performance, really 
 cuts the other alternative out of the contract altogether. 
 
 Where the contract is plainly alternative, providing for a choice 
 between doing certain acts or paying a sum of money, equity will 
 not interfere to decree specific performance ; but if the provision 
 relating to the payment of a sum of money be regarded as a pen- 
 alty, then specific performance may still be decreed.* 
 
 Limitation of Liability. — Where a cause of action arises 
 it does not necessarily follow that the pecuniary extent of recovery 
 is the same in all cases. It may be limited either by express 
 contract or by the nature of the relation in which the parties 
 stand toward one another. A common instance is that of pas- 
 sengers' baggage. A carrier of passengers whose negligence is 
 the cause of loss of baggage is not necessarily liable for the 
 whole loss; the limit of recovery is what would commonly 
 come under the head of passengers' baggage suitable in kind 
 for the nature of the journey and reasonable in amount. 
 
 Limitation of damages in amount is of frequent occurrence. 
 The question how far the measure of damages as fixed by the 
 general rules of law may be limited by contract or notice is one 
 of substantive law. Wherever it can be done it is subject to 
 the restriction that the limitation must be reasonable; and in 
 this country it is generally held that the person at fault cannot 
 be exempted from the consequences of his own negligence. 
 
 Illustrations. 
 
 (a) A clause in a passenger's ticket requires him in case of 
 dispute to pay his fare and present his claim to the company. Not- 
 
 ' Kock V. Streuter, 218 111. 546; 2 L. R. A. (n. s.) 210. 
 
254 ELEMENTS OP THE LAW OF DAMAGES, 
 
 withstanding this, he may stand upon his rights under the contract, 
 submit to expulsion and maintain his action.' 
 
 (6) A carrier may by contract but not by notice arrive at a 
 valuation of property to be transported as a basis of damages.^ 
 
 (c) Action for loss of manuscript. The liability is limited to 
 fifty dollars. The verdict finds the actual value to be fifteen hun- 
 dred dollars. A verdict for the full amount is sustained.' 
 
 In New York it is held that a carrier may contract itself free 
 from the ordinary measure of damages even in cases of negli- 
 gence, but such contract must be very clear in its terms.* In 
 the case of a free pass the carrier may exempt itself from re- 
 sponsibihty for ordinary negligence.® 
 
 ' Cherry v. Chicago & Alton R. R. Co., 191 Mo. 489; 2 L. R. A. (n. s.) 
 695. And this, notwithstanding the rule of avoidable consequences. Ibid. 
 704. 
 
 ' Central of Ga. Ry. Co. v. Hall, 124 Ga. 322; 4 L. R. A. (n. s.) 898. 
 
 ' Southern Exp. Co. v. Owens, 146 Ala. 412; 8 L. R. A. (n. s.) 369. 
 
 * Tewes v. North German Lloyd S. S. Co., 186 N. Y. 151; 8 L. R. A. 
 (N. s.) 199. 
 
 « Northern Pacific Ry. Co. v. Adams, 192 U. S. 440. 
 
CHAPTER XIX. 
 
 PARTICULAE CLASSES OF CONTRACTS. 
 
 Service. — When one is wrongfully discharged by a master 
 or other employer, the first question which arises is what is his 
 right of action. He may sue at once; but in that case, if the 
 contract covers a long period of time, does he recover his dam- 
 ages once for all, or only down to the time of trial? On the 
 other hand, may he waive his contract and sue upon a qvuntum 
 meruit f Or, may he wait till the end of the term, and then re- 
 cover the full amount ? These questions relate both to the right 
 of action, and the measure of damages, and, as they are differ- 
 ently answered in different jurisdictions, it is only possible to 
 give a rule which seems in accordance with the general prin- 
 ciples governing in actions of contract, and has the weight of 
 authority on its side. The matter has already been touched 
 upon.' 
 
 Rule. 
 
 78. For wrongful discharge from, employment under an entire 
 contract the measure of damages is the contract rate of 
 compensation for the remainder of the term, less what 
 has been or might with reasonable diligence have been 
 earned elsewhere; ' if the contract is not entire the re- 
 covery is limited to the period which the breach affects. 
 
 Illustrations. 
 
 (a) An actor contracts with a manager to play certain business 
 for thirty-six weeks, at $35 per week. At the close of the nineteenth 
 
 ' Chap. IX. 
 
 ' Under the rule of avoidable consequences. Smith v. Lumber Co., 
 142 N. C. 26; 5 L. R. A. (n. s.) 439. 
 
256 ELEMENTS OF THE LAW OP DAMAGES. 
 
 week he is discharged without cause. After his discharge he earns 
 $60 within the term and abandons an engagement worth $57. He 
 is entitled to recover the full amount for the remainder of the 
 term, less $117.' 
 
 (b) The contract is to pay $1,500 quarterly, for a year, from 
 March 21, 1889, and expenses when necessary. The breach occurs 
 November 1st. It is held that this is not an entire contract, that 
 the plaintiff has a right of action at the end of each quarter, and 
 may recover for two full quarters and expenses.^ 
 
 (c) Contract of service for a year, wages payable monthly. 
 Successive actions cannot be maintained. One recovery bars fiu-- 
 ther suits.' 
 
 (d) Contract for a year at a specified rate of wages. Within 
 three months the employee is discharged and thereupon brings his 
 action. The trial does not take place until the year has expired. 
 He recovers for the whole term less what he was paid at the time 
 of discharge and what he has since earned in other employments.* 
 
 The general rule in the case of entire contracts must however 
 be limited by the rule as to certainty. When the contract is to 
 pay an entire sum for a long term, and the trial takes place be- 
 fore it is ended, it may often be impossible to say what the plain- 
 tiff would have earned during the remainder of the term. In 
 such case the plaintiff, unless he waits till the end of the term, 
 only recovers to the time of trial. The contract, for instance, is 
 to superintend a business for five years, at $2,000 a year; the 
 breach occurs at the end of the first year. The plaintiff is al- 
 lowed only to recover to the time of trial.^ 
 
 WTien the contract is entire and the discharge for cause, it is 
 held in England that there can be no recovery and the same is 
 true even when the employment is terminated by the death of 
 the employee, but in this country generally, if the contract is 
 terminated by sickness or death, or by discharge whether 
 
 ' Sutherland v. Wyer, 67 Me. 64; ace. Everson v. Powers, 89 N. Y. 527.. 
 ' La Coursier v. Russell, 82 Wis. 265. 
 
 " Carmean v. North American T. & T. Co., 45 Wash. 446; 8 L. R. A. 
 (N. s.) 595. 
 
 * Howay «. Going-Northrup Co., 24 Wash. 88; 6 L. R. A. (n. s.) 49. 
 ' Gordon v. Brewster, 7 Wis. 355. 
 
PARTICULAR CLASSES OF CONTRACTS. 257 
 
 rightful or not, recovery can be had for the services actually 
 rendered.' 
 
 Negotiable Instruments. — It has been already stated 
 that the general rule of the common law is that for breach of 
 a promise to pay money the damages are restricted to interest. 
 In other words, though the plaintiff offers to show that the fail- 
 ure to pay has caused him the loss of more valuable employment 
 for the money, or even has reduced him to insolvency, the law 
 excludes consequential damages altogether. This is an apparent 
 exception to the rule of Hadley v. Baxendale; the reasons for 
 it have been already given. It is in reality an exception which 
 helps to prove the rule itself. Consequential damages, it will 
 be remembered, can only be proved when it can be shown that 
 they were within the contemplation of the parties. Now in the 
 case of a failure to pay money it is almost impossible for the 
 debtor to know in advance what the effect of non-payment will 
 be, because he has no means of knowing what other resources 
 in the way of property or credit the creditor has. In the case of 
 an ordinary contract for the delivery of personal property, for 
 instance, with notice in advance of a sub-sale, it is clear that the 
 vendor from the outset knows exactly what the vendee runs the 
 risk of losing, and all the vendee need show is that he could not 
 replace himself; but in the case of money, the creditor should, 
 in order to bring himself within the rule of Hadley v. Baxendale 
 and that of avoidable consequences, be able to show, 1st, the 
 consequential damage, 2d, that he could not get the money any- 
 where else, and, 3d, that the debtor had this risk in contempla- 
 tion. Money is always procurable by those whose circumstances 
 are such that others will give them credit. Hence, in this case, 
 proof that the damages were in the contemplation of the parties 
 involves proof that the debtor knew the circumstances and re- 
 sources of the creditor. But this would hardly ever be capable 
 of proof, and the law declares that, for breach of a promise to 
 pay money, the measure of damages is the value of its use, — 
 that is, the interest; and that this is a sound and reasonable rule 
 
 ' Hildebrand v. American Fine Art Co., 109 Wis. 171; 53 L. R. A. 826. 
 
 17 
 
258 ELEMENTS OF THE LAW OP DAMAGES. 
 
 may be inferred from the fact that it prevails generally among 
 all commercial and civilized nations. 
 
 To apply this rule to negotiable paper, it must be noted that 
 on a bill of exchange the promisor is the acceptor; on a note, the 
 maker. In the case of a bill or draft the promisee may be 
 the drawee, or some subsequent indorsee. In the case of a note 
 the promisee is the payee, or any subsequent indorsee. Bank 
 checks are merely a species of bills of exchange. The bill or note 
 may be indorsed through several hands, and, as a general rule, 
 the obUgation to a holder is to pay the face of the paper. There 
 may, however, have been circumstances connected with the ne- 
 gotiation which show that, as between the holder and promisor, 
 it would be inequitable to enforce this rule, and in such case the 
 promisor may be allowed to defend as to the whole or a part of 
 the consideration; but these circumstances vary in each case, 
 and belong rather to the subject of the right of recovery than to 
 that of damages. In the absence of such circumstances, the 
 note or bill, passing from hand to hand in the open market, 
 comes into the possession of the bona fide holder for value, as a 
 promise to pay money to the full benefit of which he is entitled. 
 
 Rule. 
 
 79. In an action by a bona fide holder for value against the 
 maker or acceptor of negotiable paper, the measure of 
 damages is the face of the paper with legal interest from 
 the tim£ of breach} 
 
 Illustration. 
 
 A promissory note, before delivery, is deposited by the maker 
 to be delivered to the payee in a certain contingency. It is de- 
 livered without the knowledge of the maker, and without the hap- 
 pening of the contingency. The payee puts it in circulation by 
 transferring it before maturity to A. who has no notice of the cit- 
 cumstance. A. recovers the face value of the note.' 
 
 * The "face " includes interest up to the time of breach if so expressed 
 in tenns. 
 
 " Fearing v. Clark, 16 Gray, 74. 
 
PARTICULAR CLASSES OF CONTRACTS. 259 
 
 This is the only rule of universal application on the subject. 
 As to what constitutes a bona fide holder, and whether and under 
 what circumstances the amount he pays for the paper affects 
 the measure of his recovery, the rules in each jurisdiction vary 
 very much. Thus in some jurisdictions the limitation upon the 
 rule exists that if the note was originally void, or without con- 
 sideration, only the amount paid can be recovered.' 
 
 Sales. — No class of cases throws a clearer light on the 
 principles of the law of damages for breach of contract than those 
 relating to sales, and executory contracts for the delivery of 
 personal property. The difference between the two is that in 
 the first there is an immediate transfer of the absolute property 
 in the thing sold for a money price ; ' in the second, the contract 
 so far as this particular is concerned is executory. This dis- 
 tinction so far as damages are involved is material. 
 
 Properly speaking, a sale, or "bargain and sale," takes place 
 whenever the parties intend that the title shall pass immediately. 
 Whether the price is immediately paid, or possession immediately 
 delivered, is utterly immaterial; and this is called an executed 
 sale. All other contracts for future delivery are executory; i. e., 
 they amount to a promise on the one side that the title shall pass, 
 and on the other that a price shall be paid. It is obvious that 
 the position of the buyer and seller in the two cases in case of a 
 breach is entirely different. In the first the buyer is already 
 vested with the title to the property; in the second he is not. 
 In the first, the seller can do nothing further to fix his rights as 
 to title; in the second, he still owns the property, and has a 
 right of action for breach of the contract to accept it. Both 
 classes of cases are often spoken of indifferently in the decisions 
 as sales. Here, as elsewhere, it must be always understood that 
 the rule as to certainty, the rule as to avoidable consequences, 
 and the rule' of Hadley v. Baxendale are always at hand to re- 
 strict or enlarge the apphcation of the general rules. The first 
 case that arises is that of a breach of the contract by the seller. 
 
 » Holcomb V. Wyckoff, 35 N. J. L. 35. 
 ' Benjamin on Sales, § 1. 
 
;260 ELEMENTS OF THE LAW OF DAMAGES. 
 
 It has been already seen that the general rule in all cases of 
 contract is that the plaintiff recovers the net benefit of his con- 
 tract; and the question, in the case of a sale, is, what is this 
 benefit which he has lost ? It is evidently the difference between 
 the money price paid by him and the value of the thing sold to 
 him, but which he has failed to receive. He may buy it to keep, 
 or he may buy it to sell again ; he may buy it in order to fulfil a 
 sub-contract, or he may buy it for purposes of consumption. In 
 any case, what he has lost is the difference between what he has 
 paid and the actual value of the article. This is usually the 
 market value, or what he would have to pay for a similar article 
 in the market. But not necessarily so. The thing sold may 
 have no market value, or may have a special value owing to a 
 sub-contract, of which the defendant had notice. It is in reality 
 always the value of the bargain which the plaintiff recovers.' 
 
 Three cases may arise, (1) when there is no difference in 
 value, e. g., when the market price has not risen; (2) when the 
 value has risen; (3) when the value has fallen. In the first 
 case the plaintiff has lost nothing, and consequently can only 
 recover nominal damages.^ The second case is the usual one; 
 the following^ rule applies to it : — 
 
 Rule. 
 
 80. For breach of the contract of sale the purchaser's measure 
 of damages is the difference between the contract price 
 and the value of the thing sold at the time and place of 
 delivery, with interest. 
 
 Illustrations. 
 
 (o) D. buys of F, 150 casks of madder, deliverable on or before 
 April 1, 1850, and payable in P. & H.'s acceptance at six months. 
 On the first of April D. demands the madder, and tenders payment 
 in accordance with the terms of the contract ; i. e., in the six months' 
 paper called for. On breach, D. is entitled to recover the differ- 
 ence between the contract and market price on April 1, with interest 
 
 ' See Chap. X. 
 
 ' Faulkner v. Clostei', 79 la. 15. 
 
PARTICULAR CLASSES OF CONTRACTS. 261 
 
 from October 1, the time when the paper would have become 
 due.' 
 
 (b) M. contracts with B. to dehver 500 tons of iron, in equal 
 proportions, in September, October, and November. In August 
 M. repudiates the contract. The measure of damages is the sum 
 of the differences between the contract and market prices of one- 
 third of 500 tons on the last day of September, October, and 
 November.^ 
 
 (c) The contract is to deliver wood to plaintiffs as needed during 
 the brick-making season, and there is a breach early in the season. 
 This is a continuing contract, and the measure of damages is the 
 difference in value from time to time during the season, and not 
 at the time of the first refusal.^ 
 
 (d) Delivery is to be "on or before" a certain day. If not 
 delivered on the day, the value at that date fixes the amount of 
 damages.* 
 
 (e) On March 16, S. sells G. 50 quarters of oats. No time for 
 delivery is mentioned. G. does not remove the oats and S. sells 
 them at an advance to a third person. G.'s measure of damages 
 is the difference in price on the resale.' 
 
 (/) On the 18th of July K. contracts to sell to T. 100 shares in 
 a projected railway. At the time of the contract no shares are in 
 existence, but K. has an allotment entitling him to tjie shares. On 
 the 12th of August K. refuses to perform. No scrip is issued till 
 October. A verdict is found for £150, the difference in value on 
 the date of issuing the scrip. This is wrong. The day of baeach, 
 the 12th of August, fixes the damages. K. should have delivered the 
 allotment within a reasonable time from the 18th of July." 
 
 (g) The contract is to dehver 100,000 shingles at B., at $1.25 
 per thousand. On the day fixed for delivery the price at B. has 
 
 ' Dana v. Fiedler, 12 N. Y. 40. This case, decided in 1854, is perhaps 
 as complete an illustration of the common rule as is to be found in the 
 books. The time of breach is April 1, and this is the date for taking 
 the market price, but the term from which interest runs (inasmuch as the 
 paper runs for six months) is October 1. It appears to be also one of the 
 first cases which settled the rule that the plaintiff was entitled to interest 
 as a matter of right. 
 
 ' Brown v. Muller, L. R. 7 Ex. 319. 
 
 ' Long V. Conklin, 75 111. 32. 
 
 ''Smith V. Berry, 18 Me. 122. 
 
 " Greaves v. Ashlin, 3 Camp. 426; ace. Williams v. Woods, 16 Md. 220, 
 
 ' Tempest v. Kihier, 3 C. B. 249. 
 
262 ELEMENTS OP THE LAW OF DAMAGES. 
 
 risen. On the trial, the jury is allowed to receive evidence of the 
 price at other places, and directed to take an average, after adding 
 or deducting transportation. Such a direction is wrong. The 
 market price at B. fixes the measure of damages.' 
 
 (h) A company having coal mines at Grand Tower, on the Mis- 
 sissippi, agrees to deliver 150,000 tons of coal to P., at $3.00 a ton, 
 during a year in equal daily proportions, 15,000 per month. Coal 
 rises greatly in price, and the company fails to dehver 30,000 tons. 
 There is no market at Grand Tower. On the trial, P. is allowed 
 to show the prices of coal at all points on the Mississippi, from 
 Cairo to New Orleans, and the court charges the jury that the 
 measure of damages is the cash value of the coal of the kind con- 
 tracted for, at Cairo or points below it, deducting the contract price, 
 and the cost and expense of transporting it to such poipts, making 
 allowance for the risk and hazard of such transaction. On appeal 
 this charge is held wrong. The true rule is the price at the nearest 
 available market.^ 
 
 (i) A. contracts to deliver to B. a quantity of oats at a certain 
 price, which B. pays in advance. A. fails to deliver. The measure 
 of damages is fixed by the market price at the time fixed for deliv- 
 ery, and is not affected by the fact of the payment of the price in 
 advance.' 
 
 (J) As a general rule a stockholder has the right to take his 
 proportion of new stock issued at par. A. is deprived of this right 
 by a sale, by directors, to a stranger; his measure of damages is 
 that of a purchaser on breach of contract of sale, i. e., the difference 
 between par and the market price at the time of the sale.' 
 
 In many jurisdictions it is maintained that when payment is 
 made in advance, a different rule of damages should apply, but 
 there is no agreement as to what the rule should be. The diflS- 
 culty has been already considered in ca^es of conversion, which 
 in this respect is nothing more than a forced sale; and it arises 
 also when the defendant fails to replace stock. With regard 
 to this subject, as it is impossible to state any general rule other 
 than the one above given, it is only necessary to say that on 
 
 ' Gregory v. MoDowel, 8 Wend. 435. 
 
 « Grand Tower Co. v. Phillips, 23 Wall. 471. 
 
 • Hill V. Smith, 32 Vt. 433. 
 
 « Stokes V. Continental Trust Co., 186 N. Y. 285; 12 L. R. A. (n. s.) 969. 
 
PAKTICULAR CLASSES OF CONTRACTS. 263 
 
 principle there is no diflference between cases of sales when the 
 price is paid in advance, and when it is -not. In either case, what 
 the plaintiff loses is the value of his bargain, and if he gets 
 this, he is as well off as if the contract had been performed. 
 Of course if he can show, under the rule in Hadley v. Baxendale, 
 that both parties contemplated some special use, then he may 
 recover consequential damages; but this is a very different 
 thing from speculating upon what he might have done. It 
 should be noticed also that the property may fall, instead of 
 rising in value. In this case the plaintiff loses even if the con- 
 tract is performed.* 
 
 The allowance of consequential damages and the application 
 of the rule relating to the contemplation of the parties have 
 already been explained. These rules of course come into play 
 only when both parties are affected by knowledge of the special 
 purpose in view. It sometimes happens that the purchaser has 
 some special object in view involving a larger profit, while the 
 seller knows nothing of this, but supposes the use to which the 
 article is to be put is a common and usual one ; and the follow- 
 ing rule has been declared to be the law : If the special purpose 
 from which the larger profit may be obtained is unknown to the 
 seller, the measure ^f damages is the profit which would result 
 from the ordinary, and not the extraordinary use. Defendant 
 agrees to sell the plaintiffs the hulk of a floating boom derrick. 
 The plaintiffs want it in order to place in it cranes for the purpose 
 of trans-shipping coal. This purpose is novel, and unknown 
 to defendants. Defendants suppose that plaintiffs mean to use 
 the hulk as a coal store, and this is the most obvious use for it. 
 There is a delay in delivery, which in the one case would have 
 occasioned a loss of £420 ; the loss from not being able to put it 
 to the special use intended was much greater. The measure of 
 damages is £420.' 
 
 • Cf. Startup V. Cortazzi, 2 C. M. & R. 165; Clark v. Pinney, 7 Cow. 681 ; 
 Arnold V. Suffolk Bank, 27 Barb. 424; for other cases see Benjamin on 
 Sales (Bennett's 6th Am. ed.), 901. 
 
 2 Cory V. Thames Iron Wks. Co., L. R. 3 Q. B. 181, a case which makes 
 it very clear that this must be the rule; the larger loss cannot be given 
 because the special use was not contemplated by both parties. If the other 
 
264 ELEMENTS Of THE LAW OP DAMAGES. 
 
 On the other hand the purchaser may refuse to perform. In 
 this case, if the title to the property has passed, i. e., if the sale is 
 executed, the seller usually recovers the contract price. If there 
 is no contract price he recovers the value of the article. Or he 
 may sell for the account of the purchaser, and charge him with 
 the price obtained.' 
 
 Rule. 
 
 81. When the title has passed, the seller's measure of damages 
 is the contract price; if there is no contract price it is 
 the value of the subject of sale. He may sell the property 
 for the purchaser, and recover the difference between 
 the contract price and the net proceeds of such resale. 
 
 Illustrations. 
 
 (o) The owner of a chattel requests A. to find a purchaser for 
 it, but does not fix any price. A purchaser is found, and sale 
 effected to B., but without any price being fixed. In an action by 
 the owner against B. the measure of damages is the fair value of the 
 chattel.^ 
 
 (6) A. orders an article to be manufactured by B. On notice 
 of its completion A. neglects to pay for and take it. B.'s measure 
 of damages is the contract price.^ 
 
 (c) A. sells B. 100,000 pounds of hops, at seventeen cents per 
 pound. B. sells to C. at an advance of ten and one half cents. 
 Within a reasonable time after refusal to accept, B. puts them in 
 the hands of a hop-broker, who sells them at twenty cents. B. is 
 entitled to recover the difference.* 
 
 measure of damages cannot be resorted to, the plaintiff is without 
 remedy. 
 
 ' There is a good deal of confusion in the decisions on this subject, but 
 clearly the only case in which the seller can sell for the vendee, is where 
 the title has passed, and the property belongs to the buyer. It is said in 
 Dustan v. McAndrew, 44 N. Y. 72, that he "may keep the property as 
 his own " and recover the difference between the market price and con- 
 tract price. But that can only be in case the title has not passed. 
 
 ' Taft V. Travis, 136 Mass. 95. 
 
 " Ballentine v. Robinson, 46 Pa. St. 177. 
 
 * Dustan v. McAndrew, 44 N. Y. 72. 
 
PARTICULAR CLASSES OF CONTRACTS. 265 
 
 (d) V. sells to S. a one-third interest in a partnership, the price 
 to be $10,000, and the title passing at once. S. refuses to pay,, and 
 V. after notice sells it for 17,500. In an action against S. his measure 
 of damages is 12,500.' 
 
 (e) A. sells hides to B. deUverable at Owego. On refusal by 
 B. to pay for them, A., after notice to him, sells the hides at Chicago, 
 the best market for the purpose. A. can now hold B. for the differ- 
 ence between the contract and selling price, together with expenses.^ 
 
 (/) The vendee agrees to give notes for the purchase money, 
 but fails to do so. The vendor's measure of damages is the contract 
 price.^ 
 
 Rule. 
 
 82. When the title has not passed, the measure of damages is 
 the difference between the contract price and the value of 
 ike subject of sale at the time and place of delivery* 
 
 Illustrations. 
 
 (a) The contract is to deliver iron in June. At the request of 
 the vendee the time for delivery is postponed from time to time. 
 The damages must be estimated according to the market price of 
 iron at a reasonable time after the last request to withhold delivery.^ 
 
 (6) The contract, made in New York, is to deliver 10,000 boxes 
 of glass at Antwerp on shipboard. The court charges the jury 
 that the vendor is entitled to recover the difference between the 
 contract price and the market price in New York. The vendee ex- 
 cepts on the ground that the market price at Antwerp must govern. 
 The exception is sustained, and a new trial granted.* ' 
 
 ' Van Brooklen v. SmeaUie, 64 Hun, 467. 
 ' Sawyer v. Dean, 114 N. Y. 469. 
 
 ' Foster v. Adams, 60 Vt. 392 ; Kelly v. Pierce, 16 N. D. 234 ; 12 L. R. A. 
 (n. s.) 181. 
 
 * (When the title has not passed, the seller may obviously resell, for the 
 property is his own; but in such a case the price obtained is nothing more 
 than evidence of the value, which may be proved in other ways. The 
 source of the confusion noted above is that in executory sales the plaintiff 
 has often an option to treat the refusal of the defendant as final, in which 
 case the title remains in him, or to make tender, when, upon fefusal, the 
 title passes to the purchaser. " ~ • ■ > . 
 
 " ffickman v. Haynes, L. R. 10 C. P. 598. 
 
 • Cahen v. Piatt, 69 N. Y. 348. 
 
266 ELEMENTS OF THE LAW OF DAMAGES. 
 
 (c) The contract is to deliver paving stones at Dover Street 
 Bridge, Boston. The ruling is made and excepted to that if there 
 is no market value at Dover Street Bridge, the measure of damages 
 is the difiFerence between the cost of deUvering them there and the 
 contract price. The exception is sustained and a new trial ordered. 
 If there is no market at the precise spot fixed upon for delivMy, the 
 cost of getting the stones to the nearest market must be subtracted 
 from the price there, in order to find the value at the place of de- 
 livery.^ 
 
 (d) A. employs B. to make surgical instruments for him, and 
 refuses to accept. The instruments are worthless in B.'s hands, A. 
 holding an exclusive patent right to make and sell. The measiu^ of 
 damages is the contract price.^ 
 
 (e) The contract price and the market price are the same. Only 
 nominal damages can be recovered.^ 
 
 In executory contracts of manufacture, the value may be 
 determined by the cost of production. 
 
 Illustration. 
 
 Contract to take a large quantity of silicate of soda, to be manu- 
 factured by vendor. On breach by purchaser, there being no 
 market, the vendor's measure of damages is the difference between 
 the contract price and the cost of production.* 
 
 Time of Bkeach. Refusal to perform in advance. — 
 The question of the time of breach becomes of importance 
 when either party gives notice of refusal to perform in advance. 
 In the case of an executory contract, when one party definitely 
 refuses to perform or puts it out of the other's power to perform, 
 the latter may sometimes sue before the time fixed for perform- 
 ance.' He will then be entitled to such damages as would have 
 arisen from the non-performance of the contract at the appointed 
 
 ' Bany v. Cavanagh, 127 Mass. 394; ace. Vogt v. Schienebeck, 122 Wis. 
 491; 67L. R. A. 756. 
 
 ' Allen V. Jarvis, 20 Conn. 38. 
 
 » Foos V. Sabin, 84 III. 564. 
 
 * Todd V. Gamble, 148 N. Y. 382; 52 L. R. A. 225. 
 
 » Hoohster v. De la Tour, 2 E. & B. 678; Synge v. Synge, [1894] 
 1 Q. B. 466; Lewis v. Tapman, 90 Md. 294; 47 L. R. A. 385. 
 
PARTICULAR CLASSES OF CONTRACTS. 267 
 
 time, subject to any circumstances which may have afforded 
 him an opportunity of reducing the loss/ He either adopts the 
 renunciation and sues, or waits for the arrival of the time when 
 in the ordinary course a cause of action on the contract would 
 arise.^ , And this is so in the case of sales ; but the rule does not 
 mean that the party, by thus refusing, can against the will of the 
 other fix a time at which the damages are io be calculated. On 
 the contrary, the purchaser, if the seller refuses to perform, or the 
 seller, if the purchaser refuses, provided he hold himself in 
 readiness on his own side to comply with the terms of the 
 agreement, can always hold the other party to the precise time 
 stipulated.^ 
 
 It is impossible to reconcile all the cases on this subject, or to 
 adopt the theory that Hochster v. De la Tour and Frost v. 
 Knight result in a general rule that in all executory contracts a 
 refusal to perform imports a breach which may be immediately 
 sued on. The following may perhaps be useful as a guide through 
 the labyrinth of decisions: First, If one party totally repudiates 
 a contract, when the other party is not in default, the latter has 
 a right to rescind and recover back money paid under it.* And 
 there seems no reason why, if the repudiation is in advance, it 
 may not be regarded as an offer to rescind and restore the parties, 
 if both agree, to the status qito ante. Second, in order to give 
 rise to a right of action for breach before the time fixed for 
 performance arrives, it is not enough that the defendant refuses 
 to perform in advance; conduct of the defendant must appear 
 which will relieve the plaintiff from the necessity of showing 
 readiness and offer to perform at the day.' Third, what such 
 
 ' GreenwallTheatricalCSrcuitCo. ». Markowitz,97Tex. 479; 65L. R. A. 
 302. 
 
 ' Johnstone v. Idling, 16 Q. B. D. 460, 467. 
 
 " WindmuUer v. Pope, 107 N. Y. 674; Kadish v. Young, 108 111. 170; 
 Roper V. Johnson, L. R. 8 C. P. 167; Frost v. Knight, L. R. 7 Ex. Ill; 
 Leigh V. Paterson, 8 Taunt. 540. When the contract is severable, how- 
 ever, as in ordinary cases of work and labor, a countermand will relieve 
 the party of further liability. Clark v. Marsiglia, 1 Den. 317. 
 
 * Ballou V. Billings, 136 Mass. 307. 
 
 » Daniels v. Newton, 114 Mass. 530; Stanford v. McGill, 6 N. D. 536; 
 38 L. R. A. 760. 
 
26S ELEMENTS OF THE LAW OP DAMAGES. 
 
 conduct must be will depend upon the nature of the contract. 
 It will be different in different classes of cases; e. g., in cases of 
 contracts to marry, executory contracts of sale or manufacture, 
 contracts of personal service, etc. 
 
 The rules as to sales, as already explained, may of course be 
 modified by the application of the rule in Hadley v. Baxendale.' 
 
 Contracts of Manufacttjee. — The articles sold may not 
 be in esse; or the contract may be not strictly a sale, but an 
 agreement to produce and deliver them. In such cases it is 
 sometimes said that there is a new measure of damages, i. e., 
 the difference between the cost of production and the contract 
 price; but this is not strictly true. In these cases, if the pur- 
 chaser repudiates, a number of different states of fact may arise. 
 The articles may never have been manufactured at all; they 
 may have been partly manufactured; they may have been 
 manufactured and there may be no market; there may be no 
 difference between the market price and contract price, etc. In 
 all such cases the principle underlying the decisions will be 
 found to be, provided the ordinary rule of difference between 
 market and contract price cannot be ascertained, that the plain- 
 tiff recovers the net value of the contract, including gains pre- 
 vented and losses suffered so far as provable. In other words, 
 this whole body of cases takes us back to the fundamental rule 
 underlying all recoveries in contract, and provides no special 
 measure of damages rigidly apphcable.^ 
 
 Illustrations. 
 
 (a) Contract to procure and deliver marble for a building to be 
 paid for in instalments. After part performance, defendants refuse 
 to go on. Plaintiff recovers as to part unperformed the difference 
 between what it would have cost and the contract price. ^ 
 
 ' See Chap. V. 
 
 ' Se? Rule 54, ante, Louisville & N. R. R. Co. v. Coyle, 123 Ky. 854; 
 8 L. R. A. (n. 8.) 433. 
 
 ' Masterton v. The Mayor, 7 Hill, 61. 
 
PARTICULAR CLASSKS OF CONTRACTS. 269 
 
 (fi) The article manufactured has no value when the contract 
 is repudiated except as metal. The measure of damages is the 
 contract price less the value of metal on hand and the cost of 
 completion.' 
 
 In such cases as these, the repudiation causes an interruption 
 of the performance of the contract. Of course, if the vendee's 
 repudiation merely consists of a refusal to receive the article 
 when manufactured and ready for delivery, the ordinary rule of 
 the difference between the contract price and the value at the 
 time and place comes into play again. The mere fact that the 
 article is ordered and manufactured instead of being bought 
 ready made can make no difference.^ But as already stated, 
 where repudiation is in advance of the manufacture, or where 
 the purchaser's breach of contract is such as to justify the 
 vendor's refusal to go on, the completed subject of sale is not 
 in esse, and the market value at that time is irrelevant to the 
 question, because, for the rule of market value to attach, there 
 must be a subject of sale in esse. That rule can only be applied 
 when, at the time of breach on which suit is brought, the article 
 refused is ready for delivery. Inasmuch as the vendor is not 
 bound to go on and complete the manufacture before suing, 
 but may begin suit immediately, some other test than market 
 value must apply, and that usually is the cost of production. 
 
 Illustration. 
 
 H. agrees to purchase steel rails to be manufactured, and to pay 
 for them $58 per ton. He then repudiates the contract. The man- 
 ufacturer recovers the difference between the cost per ton of rolling 
 the rails and the $58, less the profits made by the sale to another 
 party of rails made from the steel procured to fill the original 
 order.' 
 
 The crediting to defendant of profits made by the use of 
 materials originally procured to carry out the main contract is 
 an application of the rule of avoidable consequences. 
 
 ' Thomas v. Cauldwell, 58 N. Y. St. R. 142. 
 
 » Tufts V. Grewer, 83 Me. 407. 
 
 ' Hinckley v. Pittsburg Bessemer Steel Co., 121 U. S. 264. 
 
270 ELEMENTS OF THE LAW OP DAMAGES. 
 
 Waerantt. — In the case of sale with warranty of quality or 
 otherwise, if the title is vested in the vendee, what he loses if the 
 warranty is not made good is the difference in value ; and this is 
 the ordinary rule; but consequential damages are extremely 
 common. As any breach of warranty is a breach of contract, 
 the defendant, if the rule of the difference in value does not 
 apply, is liable for whatever damages follow as a natural conse- 
 quence, and proximate result, or which may be reasonably 
 supposed to have been within the contemplation of the parties.' 
 
 Rule. 
 
 83. For breach of a warranty the purchaser's measure of 
 damages is the difference between the actual value of 
 the subject of sale and the value which U would have had 
 at the time of the sale, if it had corresponded with the 
 warranty. 
 
 Illustrations. 
 
 (o) M. sells to R. cows, warranting that they are with calf. 
 His measure of damages is the difference between their value in 
 that condition and in their actual condition.^ 
 
 (6) L. sells to B. a quantity of Connecticut tobacco, warranted 
 to be "like samples," and the price is paid. On delivery, it appears 
 that the tobacco is Massachusetts tobacco, and inferior to the sam- 
 ples. B. having sold the tobacco, his measure of damages, in the 
 absence of any other evidence as to value, is the difference between 
 the value of the tobacco as warranted (the contract price) and the 
 price obtained at the second sale.' 
 
 (c) Stock is sold with a guaranty that it shall be worth $700 
 within a year. During the year the highest price is $500; at the 
 end of the year the purchaser sells it at $330, — its market value. 
 The measure of damages is $200.* 
 
 (d) Coal dust is sold to be used in the manufacture of brick, 
 warranted to be free from soft coal dust. Both parties know that 
 
 > Leavitt v. The Fiberloid Co., 196 Mass. 440; 16 L. R. A. (n. s.) 855. 
 
 ' Richardson v. Mason, 53 Barb. 601.. 
 
 ■ Bach V. Levy, 101 N. Y. 511. 
 
 * Woodward v. Powers, 105 Mass. 108. 
 
PAHTICULAE CLASSES OF CONTRACTS. 271 
 
 if mixed with soft coal dust it will injure the brick. The coal dust 
 is partly from soft coal. The purchaser's measure of damages is 
 the injury to the brick.' 
 
 (e) Cabbage-seed is sold, warranted to produce Bristol cabbage. 
 The seed being of an inferior quality, the crop is of little value. 
 The purchaser's measure of damages is the value of an ordinary 
 crop of Bristol cabbages, deducting all expense of raising the crop, 
 as well as the value of the crop actually raised.^ 
 
 (/) A cow is sold to a farmer, with a warranty that she is free 
 from foot and mouth disease. The cow, having the disease, is placed 
 with others; some of these become infected, and they, as well as 
 the cow sold, die. The jury are told that if they find that the seller 
 knew that the buyer was a farmer, and that he would therefore nat- 
 urally place her with other cows, he would be Uable for the entire 
 loss. On appeal, this is held correct.* , 
 
 (g) Sheep are sold- warranted sound. They are not in fact 
 sound, and they communicate disease to other sheep. The seller 
 must be taken to know that sheep are rarely, if ever, kept separate, 
 and is liable for the whole loss.* 
 
 (h) A Unk in a chain cable, sold with warranty, breaks. The 
 value of the anchor lost with the cable may be recovered.^ 
 
 (t) The fact that a part of goods sold has been resold for cash 
 and that no claim has been made by purchaser on account of de- 
 fects does not aflfect the rule of damages between the original ven- 
 dor and vendee." 
 
 (]) All damages may be recovered which in the contemplation 
 of the parties or according to the natural or usual course of things 
 may result from the wrongful act.' 
 
 {k) An acetylene gas machine warranted safe explodes. Dam- 
 ages for personal injuries caused may be recovered.' 
 
 (Q The defence that the articles warranted were sold at a profit 
 does not defeat the action; it only sounds in damages.* 
 
 ' MUbum V. Belloni, 39 N. Y. 53. 
 
 ' Passinger v. Thorbum, 34 N. Y. 634. 
 
 » Smith V. Green, 1 C. P. D. 92. 
 
 ' Packard v. Slack, 32 Vt. 9. 
 
 ' Borradaile v. Bninton, 8 Taunt. 535. 
 
 ' Western Twine Co. v. Wright, 11 S. D. 521; 44 L. R. A. 438. 
 
 ' Dushane v. Benedict, 120 U. S. 630, 636. 
 
 » Tyler v. Moody, 111 Ky. 191 ; 54 L. R. A. 417. 
 
 » Ellison V. Johnson, 74 S. C. 202; 5 L. R. A. (n. s.) 1151. 
 
272 ELEMENTS OP THE LAW OF DAMAGES. 
 
 Cases may arise in which the warranty covers consequential 
 damages, even though these are caused by a tort of the person 
 entitled to the benefit of the warranty. 
 
 Illttstration. 
 
 The action is to recover damages paid by plaintiff corporation 
 to its employees for personal injuries caused by the explosion of a 
 boiler warranted by defendant. Plaintiff recovers although its 
 liability to its workmen must have arisen from negligence.' 
 
 An action upon a warranty may be an ordinary action of 
 contract, or it may be an action of tort. The former case arises 
 whenever the suit is upon an express undertaking as to quahty, 
 and it is evident that in the cases just considered the underlying 
 idea is that the plaintiff shall recover the benefit of a broken 
 contract. But an action on a warranty may and quite as often 
 does sound in tort, as in the case of false representations as to 
 quality, etc., made by the seller, with a view to induce the 
 purchaser to buy.^ Here the tort consists in the falsehood 
 followed by damage. Action may be also brought for deceit, 
 fraud, or false representations in a sale, without the conception 
 of a warranty being introduced. 
 
 It has generally been said that whether the action is based on 
 a warranty or on fraud or deceit, the measure of damages should 
 be the same,' for what the vendee loses is not merely the money 
 which he pays out, but the difference between what the article 
 bought would have been worth had it corresponded with the 
 representation and its actual value. What he sues for is damages 
 for a tort which has induced loss on a contract. 
 
 In the federal courts, however, in some State courts, and in ^ 
 England, a different rule is established, if the action is brought 
 for the fraud or deceit, — that the plaintiff recovers his actual 
 
 ' Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232; 51 
 L. R. A. 781. 
 
 ^ Shippen v. Bowen, 122 U. S. 575. 
 
 ' Whitney v. Allaire, 1 Comst. 305, 312; Sherwood v. Sntton, 5 Mason, 1; 
 Morse v. Hutchins, 102 Mass. 439; Gustafson v. Rustemeyer, 70 Conn. 125; 
 Peak V. Frost, 162 Mass. 298. Cf. Whiting v. Price, 172 Mass. 240. 
 
PARTICULAR CLASSES OF CONTRACTS. 273 
 
 loss, i. e., the money paid out by him, less the value, if any, of the 
 property bought by him. 
 
 Illustrations. 
 
 (a) B. sues S. for false representations in the sale of mining 
 stock, alleging that he paid therefor $1.50 per share, that the stock 
 is worthless, and that, had the representations been true, it would 
 have been worth $10 per share; the measure of damages is not 
 what B. might have gained, but the money paid out, less any value 
 the property acquired may have.^ 
 
 (b) P. sues the directors of a company for deceit in the sale of 
 shares, consisting in a false statement that the company has the right 
 to use steam-power. The measure of damages is the price paid by 
 him less 'the real value of the shares.^ 
 
 (c) The value taken as the basis is the real intrinsic value at 
 the time of purchase; this is not Ukely to be the market value, for 
 the latter, if any exists, will at that time generally be inflated by the 
 very representation of which the deceit consists.' 
 
 This rule turns wholly, as stated by the Supreme Court of the 
 United States on whether the action is tort or contract. But 
 other cases may be found, in which the rule of actual loss has 
 been applied in articles sold with a warranty. 
 
 Illustrations. 
 
 (a) Sale of a kiln for drying lumber with warranty of capacity. 
 There is no kiln of the agreed capacity on the market. The measure 
 of damages is not the difference between the value of the kiln sold 
 and one of the required capacity but the actual loss, that is, the 
 difference between the value of the apparatus delivered and the 
 price agreed upon.* 
 
 (6) Seed rice sold with warranty fails to grow. It being too late 
 to plant another crop of rice, the measure of damages is not the 
 
 ' Smith V. Bolles, 132 U. S. 125. So in the case of the sale of a mine. 
 Sigafus V. Porter, 179 id. 116 (diss. Brown and Peckham, JJ.). 
 
 ' Peek V. Deny, 37 Ch. D. 541. 
 
 ' Hindman v. First Nat'l Bank, 50 C. C. A. 623; 112 Fed. 931; 57 
 L. R. A. 108. 
 
 * Huyett-Smith Mfg. Co. v. Gray, 129 N. C. 438; 57 L. R. A. 192. 
 
 18 
 
274 ELEMENTS OF THE LAW OF DAMAGES. 
 
 loss of the crop, which is conjectural, but the amount paid for the 
 rice, the expenses of preparation and a reasonable rent for the land 
 less what it might have been rented for after it was too late to plant 
 rice, to put in some other crop.' 
 
 To the rule adopted by the federal courts the objection has 
 been made that it places the wilful wrongdoer in a better posi- 
 tion than an innocent but mistaken warrantor. The contract is 
 executed, the sale aflBrmed in either case; in both the induce- 
 ment to the sale is the representation or warranty by means of 
 which it is effected. If an action of contract will lie, then the 
 plaintiff recovers the difference between the value of thing as it 
 is and as it should have been; if only tort can be brought, he 
 recovers only what he has actually lost, very much as if the case 
 were one of rescission, which it is not. 
 
 Besides this, there seem to be cases of warranty in which only 
 actual loss can be recovered. 
 
 Under these circumstances I venture to repeat a suggestion 
 made in the first edition of this hand-book, viz. : that there are 
 two alternative rules which may be applied both in cases of con- 
 tract and tort, and whether the action is brought for breach of 
 warranty, or for a vendee's damages for false representations 
 which have induced a sale.^ The first of these rules is the 
 ordinary rule laying down the measure of damages in cases of 
 warranty ; the difference in value between the article as it is and 
 as it should have been to correspond with the warranty. The 
 second is that in cases where this rule cannot be appHed, owing 
 to the fact that the rule of certainty forbids, then, whether the 
 action be tort or contract, whether it be for breach of warranty, 
 or for fraud, deceit or false representation, inducing a sale, the 
 vendee's damages are measured by his actual loss including, in a 
 proper case, consequential damages. In such cases as Smith v. 
 
 ' Reiger v. Worth, 127 N. C. 230 ; 52 L. R. A. 363. In such cases the 
 measure of damages may be the same as that which governs in an 
 ordinary action of tort for injury caused by negligence. Horres v. Berkeley 
 Chemical Co., 57 S. C. 189; 62 L. R. A. 36. 
 
 ' If the false representations are of that sort on which the purchaser 
 is not entitled to rely, then the question does not arise. 
 
PARTlCULAfi CLASSES OF CONTRACTS. 275 
 
 BoUes, and Sigafus v. Porter, the objection is really, as the court 
 says, to allowing the plaintiff to get the fruits of an "unrealized 
 speculation." * 
 
 Without pretending that the cases as actually decided can be 
 reconciled by this test, it may at least be fair to suggest that in 
 such cases as Smith v. BoUes all the facts show that the dam- 
 ages claimed were in the highest degree speculative and con- 
 jectural. If they were, then they were not proved with that 
 sort of certainty that the law requires. If Smith v. BoUes is to 
 be followed blindly, then precisely the same case, if it sounded 
 in contract against an innocent warrantor, would have to be 
 decided so as to let in these very conjectural damages. The 
 plaintiff could recover the "expected fruits of an unrealized 
 speculation" if he had secured a warranty based on an honest 
 mistake, and fail to recover anything but actual loss from a 
 rogue who shielded himself behind simple fraud and deceit. If 
 an alternative rule were recognized, he would recover in all 
 cases, whether tort or contract, the full difference in value, if 
 provable; and his actual loss, if such damages were illusory, 
 uncertain and conjectural. 
 
 Illustration. 
 
 A newspaper is sold by means of false representations as to earn- 
 ings. The measure of damages is the difference between the actual 
 value and what would have been the value had the representations 
 been true.^ 
 
 In the case of breach of warranty of title, when there is no 
 title at all, the purchaser, losing tho>property itself, may treat the 
 contract as void for want of consideration, and sue to recover back 
 the consideration money, even when this was in excess of the 
 value of the article sold.' If he (Joes not do this, the ordinary 
 rule of damages is modified by the circumstance that he gets 
 nothing by his bargain, and also, has been involved in a contest 
 
 ' Sigafus V. Porter, 179 U. S. 116, 123. 
 
 ' Smith V. Werkheiser, 15 L. R. A. (n. s.) 1092. 
 
 ' Wilkinson v. Ferree, 24 Pa. St. 190. 
 
276 ELEMENTS OF THE LAW OF DAMAGES. 
 
 over the title. In such cases the measure of damages is often 
 said to be the value of the chattel at the time of thfe purchase with 
 interest, together with the necessary costs of defending the title, 
 with interest.' But inasmuch as the failure of title may be only 
 partial, or the breach consist in the existence of outstanding 
 liens, the rule has been stated as follows : — 
 
 Rule. 
 
 84. For breach of warranty of title the measure of damages is 
 the difference in value between such title as the purchaser 
 obtains, and svch title as the seller undertook to convey. 
 
 Illustration. 
 
 H. sells G. as a chattel a shop on B. Street, together with an un- 
 expired term of the lease of the land on which the shop stands. The 
 shop was in fact part of the realty, but G. holding under the lease 
 has not been disturbed in possession. The trial judge charges the 
 jiuy in accordance with the rule just stated, and this is excepted 
 to. The exceptions are overruled, the court saying that the rule 
 is " sufficiently favorable to the defendants." ^ 
 
 But, as Hoar, J., says in the case just cited, upon the question 
 of title, the general rule — the difference between what 'pur- 
 ported to be sold, and what was actually sold — is still the true 
 one. In the ordinary case the defect is in quaUty or quantity, or 
 fitness for a purpose. Here it is in the extent of the interest which 
 passes. 
 
 Contracts of Indemnity. — Contracts of indemnity assume 
 a variety of different forms. There are, for instance, implied 
 contracts of suretyship, as between parties to negotiable paper, 
 and contracts of express guaranty. Another class of cases is that 
 of sureties in official bonds, which have been already referred to. 
 The fundamental distinction to be noticed is that between an 
 
 » Rowland's Admrs. v. Shelton, 25 Ala. 217. 
 ' Grose v. Hennessey, 13 All. 389. 
 
PARTICULAR CLASSES OF CONTRACTS. 27X 
 
 afiSrmative covenant to do a specific thing, as to pay a sum o£ 
 money, or discharge one from a debt or Uability, and one of in- 
 demnity against damage by reason of the non-performance of the 
 thing specified.' In the former case the contract is broken, and 
 damages are to be recovered on the defendant's failure to do the 
 specific thing, or to discharge the debt or liability ; in the latter, 
 there is no breach until actual damage is sustained. 
 
 Rule. 
 
 85. For breach of a contract to pay or discharge a debt, or to 
 save harmless from a liability, the measure of damages is 
 the amownt of the debt or liability, though the plaintiff 
 has not paid it. 
 
 ■ Illustrations. 
 
 (o) H. agrees with F. to "assume and pay" all the debts of a 
 firm of which F. is a member, and also to "indemnify and save 
 harmless" F. and the firm from any claims arising by reason of 
 the debts. These are independent stipulations, and F. can main- 
 tain an action against H. before he has paid anything.^ 
 
 (6) W. agrees with H. that if he, H., will sue C. for rent in arrears, 
 and obtain judgment and levy on the property, he will bid it off for 
 whatever the judgment and costs amount to. H. sues and obtains 
 judgment, and gives notice of a sale. W. does not bid. In a suit 
 by H. against W., the measure of damages is the amount of the 
 judgment with interest.' 
 
 (c) M. assigns a contract to D. & P. who "assume" it, and 
 agree to save M. harmless from "all liability." There is a liability 
 on a sub-contract for 111,048.08, which D. & P. neglect to pay. 
 The agreement is broken by this failure, and M. can recover the 
 amount of the liabiUty with interest.* 
 
 (d) The grantee of land upon which there is an existing power 
 of sale mortgage, secured also by a promissory note, takes it by a 
 
 ' Gilbert v. Wiman, 1 N. Y. 550. 
 
 ' Famsworth v. Boardman, 131 Mass. 115. 
 
 ' Wicker v. Hoppock, 6 Wall. 94. 
 
 * Mais V. Dow, 133 U. S. 423; for other cases see Hodgson v. Wood, 
 2 H. & C. 649; Trinity Church v. Higgins, 48 N. Y. 532; Conner v. Reeves, 
 103 N. Y. 627; Maloney v. Nelson, 144 N. Y. 182. 
 
278 ELEMENTS OP THE LAW OF DAMAGES. 
 
 deed containing a covenant that it is free from incumbrances ex- 
 cept a mortgage to A. for $4,000, "which the grantee assumes, and 
 agrees to hold the grantors harmless from." On default the prem- 
 ises are sold under the power of sale, but the amount realized is not 
 suflBcient to pay the debt in full. In a suit upon the covenant, the 
 measure of damages is the amount remaining due upon the note.' 
 
 This rule seems now to be firmly fixed, on the ground that, al- 
 though ordinarily parties injured by a breach of contract cannot 
 recover unless they can show actual loss, still they have the right 
 to make what contracts they please, and if they choose to pro- 
 vide that mere liability shall be made good, no principle of law 
 is infringed. One objection to the rule has been said to be that 
 the money the defendant may pay may not be applied by the 
 plaintiff to the discharge of the original debt.^ But this after all 
 is no concern of the defendant's. His obligation is satisfied, 
 while, so far as regards the original creditor, he has no claim 
 against the indemnitor whatever. 
 
 Rule. 
 
 86. For breach of a contract to indemnify whether expressed or 
 implied, no damages can be recovered vdthovt proof of 
 oMual pecuniary loss. The measure of damages is the 
 arrumnt of the loss. 
 
 Illustrations. 
 
 (o) A deputy sheriff with sureties executes a bond to the sheriff 
 conditioned that the deputy shall so demean himself in oflSce that 
 the sheriff shall not sustain any "damage or molestation" through 
 him. In an action on the bond the sheriff shows in one case a judg- 
 ment against him ; and in another an arrest followed by judgment, 
 but no payment of the judgments. The court rules that he is en- 
 titled to nominal damages only; but he submits to a non-suit, 
 with leave to move for a new trial. A new trial is denied on the 
 ground that there have been no damages, and that the word "mo- 
 lestation" does not enlarge the scope of the covenant.^ 
 
 ' Locke V. Homer, 131 Mass. 93. 
 
 ' Loosemore v. Radford, ^ M. & W. 657. 
 
 " Gilbert v. Wiman, 1 N. Y. 550; the court points out that this word 
 
PARTICULAR CLASSES OF CONTRACTS. 279 
 
 (6) W. ^ves a bond with sureties to V., which is construed to be 
 a bond of indemnity against demands on a firm of which W. is a 
 member. V. accepts drafts, and the holder sues V. and recovers 
 judgment. V. pays a sum less than the face of the judgment, and 
 assigns the bond to the holder. The judgment is entered satisfied, 
 the holder undertaking, if he recovers on the bond the amount of 
 the judgment, to repay the sum paid by V. In an action on the bond 
 he recovers only the sum paid by V.' 
 
 (c) A. gives B. two notes to indemnify him for signing other 
 notes as surety. The measure of damages is the amount paid by 
 the plaintiff at any time before trial ; in case no payment is made, 
 nominal damages may be recovered.^ 
 
 (d) The contract is to indemnify a mortgagee on selling timber. 
 There being no evidence to show that the sale of the timber had 
 any other effect of depreciation, the measure of damages is the 
 price paid for it.* 
 
 Agreements to lend Money. — As a general rule for breach 
 of agreement to lend money only nominal damages can be re- 
 occurs frequently in covenants for quiet enjoyment, and against incum- 
 brances; but that nothing short of an eviction, or in the latter case, 
 payment of money, will entitle a party to recover. This seems to show- 
 that in all such cases pecuniary damage is intended. 
 
 ' Valentine v. Wheeler, 122 Mass. 566. 
 
 " Osgood V. Osgood, 39 N. H. 209; Haseltine v. Guild, 11 id. 390. The 
 rule that the plaintiff can recover anything paid down to the time of trial, 
 and that he can in any case recover nominal damages, is entirely at variance 
 with the principle on which these actions are founded. At common law, 
 the defendant could always plead non damnificatus, and this was an answer, 
 1 Saunders, 116 n.; Locke v. Homer, 131 Mass. 93; but if the answer of 
 no damage is a defence to the action, then damage is the gist of the action 
 and there is no room for the application of the doctrine of nominal damages. 
 So, too, if damage is the gist of the action, and there is no right of action at 
 all, the suit cannot be kept open till the plaintiff has paid something. 
 He has no right to begin the suit till he has paid something, for the reason • 
 that he may never have to pay anything. The rule as given above is be- 
 lieved to be in accordance with principle. In Osgood v. Osgood, 39 N. H. 
 209, contracts of indemnity are compared with the case of a covenant of 
 warranty against incimibrances. But the cases are not alike, for if there is 
 an outstanding incumbrance, then the covenant is immediately broken, 
 and a right of action carrying nominal damages at once arises. 
 
 ' Curtis V. Baugh, 79 111. 242. 
 
280 ELEMENTS OP THE LAW OF DAMAGES. 
 
 covered,' The value of the bargain is not substantial because the 
 interest to be paid for the money represents its value, while other 
 profits are only conjectural. 
 
 Illustrations. 
 
 (a) The action is for breach of contract to lend money. Only 
 nominal damages are recoverable.^ 
 
 (6) A. places all his property in the hands of B. who under- 
 takes to pay o£F liens and incumbrances. By reason of his failure 
 to do so, the property is lost. The measure of damages is nominal. 
 It does not appear that the owner might not have procured the 
 money elsewhere.^ 
 
 Had the action of the mortgagee in this case prevented A. from 
 obtaining the money elsewhere, A. would probably have been 
 entitled to substantial damages. Notwithstanding what has 
 been said * about the exclusion of evidence of special damages in 
 actions of this sort, there is no absolutely conclusive rule on the 
 subject. Damages are usually nominal or limited to difference 
 in interest for loss of the use because of the total uncertainty as 
 to the nature and extent of other damages; but if this difficulty 
 is overcome by the circumstances of the case, then an action 
 founded on a failure to pay or lend money becomes like any 
 other. The rule in Hadley v. Baxendale applies and damages 
 within the contemplation of the parties are allowed. 
 
 Illustrations. 
 
 (a) A common carrier neglects to deliver some money in time 
 to pay an endowment pohcy. The policy lapses. The defendant 
 had notice. Held, that the plaintiff may recover the value of the 
 policy.^ 
 
 (6) The cause of action is breach of a contract to keep a cash ac- 
 count of £500 to meet drafts. The plaintiff may recover for the 
 expense of protest and loss in general business through impaired 
 
 • Ante, Chap. III. 
 
 ' Gooden v. Moses, 99 Ala. 230. 
 
 ' Lowe V. Tuipie, 147 Ind. 652; 37 L. R. A. 233. 
 
 « Ante, Chap. III. 
 
 ' Grindle v. Eastern Express Co., 67 Me. 317. 
 
PARTICULAE CLASSES OP CONTRACTS. 281 
 
 credit.^ But in accordance with the general principle, he cannot 
 recover for loss on sales made to procure money .^ 
 
 (c) A bank having funds to pay a customer's check dishonors 
 it. The customer is entitled to substantial damages and a verdict 
 for nominal damages is erroneous.' 
 
 Principal and Sueett. — Formerly the surety's action 
 against the principal was either on special assumpsit, or on the 
 common counts for money paid, had and received, or laid out and 
 expended, and as the technical rule was that the proof must 
 correspond with the allegation, no recovery could be had for any- 
 thing short of this. The rule was soon relaxed so as to make 
 payment by negotiable paper, if accepted by the creditor as such, 
 equivalent to payment of money ; but it was not extended to other 
 forms of security such as bonds.* Now that the common-law 
 system of pleading has been swept away, however, the question 
 presents itself in a different way. The question is not whether 
 the surety has paid money, but whether, by the transfer of 
 money's worth, property, or in any other way, he has discharged 
 the obligation which he assumed. If the transaction according 
 to the understanding between him and the creditor amounts to 
 this, then he is entitled to recover the amount of loss he has sus- 
 tained in accomplishing it. Thus he may give a note, and if this, 
 as between the parties, is received as payment, he may at once 
 sue the principal.' So, where the land of a surety has been levied 
 upon to satisfy the debt of the principal;* even under the old 
 system of pleading, the debt was extinguished by a conveyance 
 of land.' This matter, which may now be dismissed in a few 
 words, is a good illustration of the effect which the abolition of the 
 common-law rules of pleading has had in making the redress 
 conform to the actual rights of the parties. 
 
 ' Larios V. Bonany Y Gurety, L. R. 5 P. C. 346. 
 
 ' Ihid. 
 
 ' Svendsen v. State Bank of Duluth, 64 Minn. 40; 31 L. R. A. 552. 
 
 * Morrison v. Berkey, 7 S. & R. 238. 
 
 « Peters v. Bamhill, 1 Hill (S. C), 234, 237. 
 
 • Lord V. Staples, 23 N. H. 448. 
 ' Ainslie v. Wilson, 7 Cow. 662. 
 
282 ELEMENTS OF THE LAW OP DAMAGES. 
 
 Where a judgment has been recovered against the surety and 
 satisfied, this is competent evidence to show the amount of dam- 
 ages. It may be conclusive, as where the principal is notified 
 of the action by the surety, and has an opportunity to defend.' 
 But this is matter of evidence, and does not affect the measure 
 of damages, which is always the loss or expense to which the 
 surety has been put. 
 
 The surety instead of paying voluntarily may be compelled to 
 pay by suit, or may suffer consequential loss. A frequent case 
 is that of a bond to indemnify for all damage by reason of a suit 
 or suits, or for "all suits, damages, and costs." In such cases 
 counsel fees are always recoverable, this being the meaning of 
 the contract. ^ When there is no such explicit guarantee, as when 
 the bond is to pay "all damages," the rule seems to be the same,' 
 and the rule should be the same where the guaranty is implied. 
 The general principle, excluding 4he allowance of counsel fees 
 has been discussed elsewhere,^ and it has been seen that when 
 one is sued not on his own contract, but for the default of an- 
 other, and he has a remedy over, counsel fees are a natural and 
 necessary part of the damages.' But this is only when the suit 
 is necessary ; ° and consequently it is usual for the surety to 
 give notice of the suit, in order that the principal may come in 
 and defend. If not given, the surety must, in his suit against 
 the principal, show that it was necessary for him to pay the 
 original claim, or to contest the original suit; if given, the re- 
 sult of the suit is conclusive upon the principal.' Notice, it will 
 be seen, goes to the question of evidence, and does not affect 
 the measure of damages. 
 
 ' Hare v. Grant, 77 N. G. 203; Dubois v. Hermance, 56 N. Y. 673; 
 Campbell v. Somerville, 114 Mass. 334; Insurance Cos. v. Thompson, 95 
 U. S. 547. 
 
 ' Ripley v. Mosely, 57 Me. 76; Lindsey v. Parker, 142 Mass. 583. 
 
 ' Finckh v. Evers, 25 Oh. St. 82. 
 
 * Chap. III. 
 
 » Westfield v. Mayo, 122 Mass. 100. 
 
 " Short D. Kalloway, 11 A. & E. 28. 
 
 ' Duffield V. Scott, 3 T. R. 374; Smith v. Compton, 3 B. & Adol. 407; 
 Brown v. Haven, 37 Vt. 439. 
 
particular classes op contracts. 283 
 
 Rule. 
 
 87. When a surety or one holding an indemnity over is com- 
 pelled by suit to pay the demand, his measure of dam- 
 ages is the amount paid, and also his costs, counsel fees, 
 and reasonable expenses. 
 
 In applying this rule it is essential to observe the precise scope 
 of the indemnity, for it is only applicable when the contract, 
 whether express or implied, is that the principal debtor shall 
 answer for the whole damage. With regard to commercial paper, 
 for instance, the first question as between two parties is what is 
 the exact nature of the contract. Thus an indorser of a bill of 
 exchange, sued by the indorsee, has been held not entitled to 
 recover from the acceptor the costs incurred in such action, there 
 being no privity between them.' And the payee of a note, who 
 has indorsed it, and then been sued by the indorsee, cannot hold 
 the maker for the costs of the suit,^ probably because it was his 
 duty upon his independent contract of indorsement to pay the 
 note without suit. On the other hand, an accommodation in- 
 dorser has been held to be a surety, and to have the right to 
 recover the costs of a suit which he may be compelled to pay.' 
 
 Contracts of Insurance. — Fire insurance is a contract of 
 indemnity by which the insurer, in consideration of a certain 
 premium, agrees to make good to the assured for a certain time 
 all loss or damage not exceeding a certain specified amount that 
 may happen from the risk insured against. "It is not, strictly 
 speaking, an insurance of the property, in the sense of a liability 
 for the loss of the property by fire to any one who may be the 
 owner. It is rather a personal contract with the person having 
 a proprietary interest in it, that the property shall sustain no 
 loss by fire within the time expressed in the policy. It is a per- 
 sonal contract which does not pass to the assignee of the prop- 
 
 ' Dawson v. Morgan, 9 B. & C. 618. 
 ' Simpson v. Griffin, 9 Johns. 131. 
 ' Baker v. Martin, 3 Barb. 634. 
 
284 ELEMENTS OF THE LAW OF DAMAGES. 
 
 erty." * This is what is called an open policy, and is the ordinary 
 species of contract for insurance against fire. In marine insur- 
 ance, it is common for the parties to put a fixed valuation on the 
 property insured, in which case the contract is called a valued 
 policy, and the plaintiff recovers this sum without regard to the 
 actual loss. In the one case the sum insured is a limit, and 
 the measure of recovery is the actual loss within this hmit ; in the 
 other the sum is a value agreed upon by the parties as an esti- 
 mate of the loss, and is itself the measure of damages. It is to 
 be noticed that most fire policies contain a clause authorizing 
 the insurers, instead of paying in money, to rebuild or repair, on 
 giving notice of his intention to do so. In this case, on their 
 election to do so, a new contract to build or repair is substituted 
 for the contract of insurance, and this new contract may itself be 
 broken. The three ordinary cases under a fire policy, therefore, 
 are: 1. Total loss; 2. Partial loss; 3. Election to reinstate, 
 followed by breach. In all these cases the general rule may be 
 thus expressed: — 
 
 Rule. 
 
 88. On an open policy of fire insurance the measure of damages 
 is such sum, within the limit of the risk, as will put the 
 insured in as good a position as if no loss had occurred.' 
 
 Illustrations. 
 
 (a) Property insured against fire is partly destroyed. The 
 value of the property is greater than the sum insured. The insured 
 is entitled to recover his whole loss, provided it does not exceed the 
 amount insured.' 
 
 (b) Goods insured are totally destroyed. The measure of dam- 
 ages is the market value of the goods at the time and place of the 
 fire.* 
 
 ' Per Shaw, C. J., King v. State M. F. Ins. Co., 7 Cush. 1. 
 
 ' It must be constantly borne in mind that in this and all other cases 
 of attempts to state a rule of damages as to express contracts, the rule is 
 based on a normal type of contract in common use, and is always subject in 
 any given case to variation through modifications introduced by the parties. 
 
 ' Underbill v. Agawam M. F. I. Co., 6 Cush. 440. 
 
 • Fowler v. Old North State I. Co., 74 N. C. 89. 
 
PARTICTJLAR CLASSES OF CONTRACTS. 285 
 
 (c) A policy on a house provides that, in the event of loss, the 
 estimate is to be according to the "true and actual cash value" at 
 the time. This means the value of the building as it stood on the 
 ground at the time of its destruction, as compared with a new 
 building of the same sort, — not the original cost, nor a sum 
 sufficient to erect a new building, nor the difference in value of 
 the lot with the building upon it and its value with the building 
 destroyed.* 
 
 (d) An owner of land with buildings thereon conveys the land, 
 reserving the buildings, provided that they shall be removed by 
 him on October 1, and if not removed become the absolute property 
 of the grantee of the land. The buildings are insured, and de- 
 stroyed by fire in August. The owner is entitled to recover the 
 actual intrinsic cash value of the buildings, or to such a sum as 
 it would have cost at the time of the fire to have restored them to 
 their previous condition, and not the value as subject to removal 
 on October 1.^ 
 
 (e) A policy provides that the insurers may repair, the insured 
 contributing "one fourth of the expense." The insurers, electing 
 to comply with this provision, make repairs of substantial benefit, 
 though not fully making good the loss. The defendants request an 
 instruction that the measure of damages is "the sum which the 
 plaintiff is damaged by the insufficiency of the defendants' repairs." 
 The request is refused, and the jury is told that if the defendants 
 have not fully repaired, no deduction can be made from the damage 
 originally done, and that the jury should in that case "give the 
 same damages to the plaintiff as if no repairs had been made." 
 To these instructions the defendants except, and on appeal the 
 exceptions are sustained, it being held that the true measure of 
 damages is the difference between the..va;lue of the building as re- 
 paired in fact, and what the value would have been had the repairs 
 been fuU and complete, taking into account the provision as to one- 
 fourth.' 
 
 • Mtna, Ins. Co. v. Johnson, 11 Bush, 587. 
 
 = Washington Mills Manuf. Co. v. Weymouth Ins. Co., 135 Mass. 503. 
 They might never have been removed. Cf. Laurent v. Chatham Fire Ins. 
 Co., 1 Hall, 41. Both cases are well considered and instructive. 
 
 ' Parker v. Eagle F. Ins. Co., 9 Gray, 152. As to this fourth, the case 
 is not very clear. The provision is for "one fourth of the expense;" yet 
 the court says that, "when the repairs are imperfect," the insured should 
 bear "not one fourth of the cost of repairs, but of their value to the estate.'' 
 
86 ELEMENTS OP THE LAW OP DAMAGES. 
 
 It is a general principle of the law of contracts that a person 
 lay enforce any agreement with regard to property of which 
 e has lawful possession, and with which he has apparent power 
 ) deal, even though he is accountable over to another for the 
 •uits of the contract, or damages for its breach ; and a fortiori 
 I this true if he has any legal interest or estate in it. It is a 
 Dnsequence of this rule that for breach of contract of insurance 
 le measure of the recovery is not affected by the nature or ex- 
 int of the legal interest of the assured in the property, unless, 
 F course, it is expressly insured as such. A bailee, e. g., a coh- 
 gnee or. commission agent,' a warehouseman or wharfinger,' 
 r, again, a vendor who has not received the purchase money,' 
 lay recover the whole amount insured, though he is responsible 
 ver to third persons for any amount beyond what is due him. 
 
 Beyond this, however, the law will not go, and what are called 
 ager poUcies, or poKcies taken out by those who have no in- 
 irest whatever, so that the transaction is a mere wager that the 
 ssured will recover the amount of the policy before he has paid 
 sufficient amount in premiums to make the transaction a los- 
 ig one for him, are contrary to public policy, and illegal, on 
 le ground that they are gaming contracts and create a tempta- 
 on to destroy property (and the same is true of wager life 
 Dlicies as tending to create a temptation to destroy life). In 
 le case of mortgages, three cases may arise; 1st, the mortgagor 
 lay insure his interest; 2d, the mortgagee may insure his in- 
 rest; 3d, the mortgagor may insure the interest of the mort- 
 igee for the latter's benefit. In the last case, which is the 
 sual one, the insurance is merely an additional security for 
 le money loaned, and on a loss any money paid goes to the 
 ortgagee in reduction of the debt. If there is a surplus it be- 
 ngs to the mortgagor.* If the mortgagee insures at his own 
 
 > Hough V. People's F. Ins. Co., 36 Md. 398; De Forest v. Fulton F. Ins. 
 >., 1 Hall, 84; Stillwell v. Staples, 19 N. Y. 401. 
 ' Waters v. Monarch, F. & L. Ass. Co., 5 E. & B. 870. 
 « CoUingridge v. Royal Exch. Ass. Corp., 3 Q. B. D. 173; Ins. Co. v. 
 jdegraff, 21 Pa. St. 513. 
 
 * Kmg V. State M. F. I. Co., 7 Cush. 1; Kemochan v. N. Y. Bowery 
 I. Co., 17 N. Y. 428. 
 
EAETICULAE CLASSES OF CONTRACTS. 287 
 
 expense it is held in Massachusetts that he recovers the whole 
 loss, and cannot be called upon to account to the mortgagor, 
 nor to assign his mortgage or any part of it to the insurers. "^ 
 In such a case the mortgagee may recover the insurance money 
 and also the mortgage debt, for the two contracts are independ- 
 ent of each other, the consideration of one being the money 
 loaned, of the other the premiums paid.' In other jurisdictions 
 the mortgagee in this case recovers the whole amount of the 
 loss, but is required to assign his mortgage to the insurer.' In 
 still others he is restricted to the amount of the loan unpaid at 
 the date of the loss.* If the mortgagor insures his interest, he 
 recovers the whole amount of his loss ° even if his interest be 
 reduced to a mere equity." In the second case, the difference of 
 view arises not from any difference as to the measure of dam- 
 ages, for the mortgagee recovers in every jurisdiction (in ac- 
 cordance with the general rule given above) the full amount in- 
 sured ; but from a difference as to the precise relation in law or 
 equity existing between the mortgagor, mortgagee, and insurer. 
 If the view taken is that the mortgagee has no insurable interest 
 except the debt due him, it necessarily follows that, this being 
 extinguished by the payment on the poUcy, the insurers should 
 be entitled to stand in his place; in this case the poUcy is re- 
 garded as a mere additional security for the debt. If it be con- 
 sidered that the mortgagee may, by paying the premiums, enter 
 into an independent contract with the insurer, then he is en- 
 titled to recover the amount insured from the insurer, and still 
 hold the property for the debt. 
 As between the two views, it must be said that so far as the 
 
 • King V. State M. F. I. Co., 7 Cush. 1; International Trust Co. v. 
 Boardman, 149 Mass. 158; Biirlingame v. Goodspeed, 153 id. 24. 
 
 ' King V. State M. F. I. Co., ubi sup. See this case for a discussion of the 
 whole subject by Shaw, C. J. 
 
 ' Carpenter v. Providence Washington I. Co., 16 Pet. 495. See opinion 
 by Story, J. Honore v. Lamar F. I. Co., 51 111. 409; Sussex Co. Mut. Ins. 
 Co. V. Woodruff, 26 N. J. L. 541. 
 
 * Carpenter v. Prov. Wash. I. C&., 16 Pet. 495; Sussex Co. Mut. Ina. 
 Co. V. Woodruff, iM sup. 
 
 ' Kemochan v. N. Y. Bowery F. I. Co., 17 N. Y. 428. 
 " Strong V. Mfrs. Ins. Co., 10 Pick. 40. 
 
288 ELEMENTS OF THE LAW OF DAMAGES. 
 
 mortgagor or insurer is concerned, their interests are not affected 
 adversely in any way by holding the two contracts entirely Inr 
 dependent of each other. The mortgagor is liable in any case 
 for his debt, and no more ; the insurer, for his contract, has re- 
 ceived the consideration in premiums. The real question is one 
 of public policy. Is the contract a mere wager policy ? 
 
 It may be said, if the creditor is amply insured by the land, 
 without the buildings, that his insurable interest in the latter 
 is of a very trifling character; but in the not uncommon case of 
 a security consisting in great part or mainly in the buildings, 
 insurance against fire is an essential safeguard, and insurance 
 in such a case does not in the least resemble a wager. 
 
 A frequent species of contract is that for reinsurance, the in- 
 surer protecting himself from liability on his policy by taking 
 out a policy to indemnify himself against loss. On principles 
 already explained, the first insurer (a loss having occurred), 
 may at once sue the reinsurer, and recover the full amount, 
 without having paid anything.' 
 
 Marine insurance was originally regarded as a contract of 
 indemnity, the consideration being the premiums paid, and the 
 agreement being, (1) to make good to the assured all loses 
 (2) not exceeding a certain amount which may happen (3) to 
 the subject assured (4) from certain definite risks (5) during 
 a certain period. The rules governing this species of contract 
 throw very little light upon the principles governing the meas- 
 ure of damages, partly because they are mainly derived, not 
 from these principles, but from the view taken by the courts of 
 the effect of an express contract very peculiar in its form, having 
 its origin in mercantile custom, and its principles of interpreta- 
 tion drawn rather from what is called the law merchant than 
 from the common law. Little more will be attempted here than 
 to explain some of the peculiar rules which govern marine 
 insurance. 
 
 Insurance may be effected either upon the vessel, the cargo, 
 or the freight, or on all three ; the risks commonly insured against 
 
 » Mutual Safety Ins. Co. v. Hone, 2 Comst. 235; Blackstone v. Ale- 
 mannia F. Ins. Co., 56 N. Y. 104. 
 
PARTICULAR CLASSES OP CONTRACTS. 289 
 
 are the "perils of the sea." Consequently the question which 
 in the majority of cases first arises is one of proximate cause. 
 Has the loss been caused by a peril of the sea? Thus, in a 
 case already cited, where a wreck occurred in time of war, and 
 there was an interference by troops, a part of the loss was held 
 to be proximately caused by a peril of the sea, while a part was 
 held to be due to the existence of hostilities. 
 
 It having been ascertained that the proximate cause of the 
 loss is a peril insured against, three cases may arise, — (1) that 
 of partial loss, (2) that of total loss, and (3) that of construct- 
 ive total loss. And these cases may arise, (1) under an open 
 poUcy, (2) under a valued policy. The difference between the 
 two is, that under an open poUcy the amount of damages is de- 
 termined by the language of the policy and the general principles 
 of law; under a valued policy, which has in practice almost 
 superseded the open policy, the agreed valuation is taken as a 
 conclusive basis of settlement. 
 
 Under an open policy, if the loss is total, the rule of indem- 
 nity would be the value of the property lost. And here the rule 
 still governs. 
 
 Rule. 
 
 89. Under an open marine policy, the measure of damages is 
 the actual value of the property lost. 
 
 Illustrations. 
 
 (a) The property lost is the vessel. The measure of damages is 
 not the cost, but the value, of the ship.^ 
 
 (6) The property insured is the cargo. In ascertaining the value, 
 the premium paid for insurance, and commissions and charges, 
 must be added to the invoice price at the port of departure.^ 
 
 A valued policy, which is the contract now generally in use, 
 values the subject of insurance, — i. e., the ship, cargo, or freight 
 
 ' Snell V. Del. Ins. Co., 4 Dall. 430. 
 ' Usher v. Noble, 12 East, 639. 
 19 
 
290 ELEMENTS OP THE LAW OP DAMAGES. 
 
 — at a given sum, and is equivalent to an assessment of dam- 
 ages in the event of a total loss. It is, in this event, a substi- 
 tute for the proof of the value of the thing insured under an 
 open policy.' This does not mean that the insured can recover 
 arbitrarily without regard to the amount of his loss; whenever 
 it is necessary, the valuation will be opened, and the real facts 
 inquired into. Of course it is undertsood that the valuation 
 must not be fraudulent nor intended as a cover for a wager.^ 
 The cases can only be understood by bearing in mind that the 
 valuation of the subject of insurance does not affect the general 
 character of the contract or the general rules of damages in any 
 way, but merely adds a clause to the open policy to the effect 
 that the parties have agreed that the subject of insurance shall 
 be held proved to be worth a certain sum. The reason of the 
 introduction of the valuation is merely that with the loading 
 and discharge of cargoes and the earnings of a voyage, and the 
 wear and tear of a vessel, the actual value of the thing insured 
 is continually changing, and hence a valuation in advance has 
 been found to be for the interest of both parties. 
 
 Rule. 
 
 90. Fofr a total loss under a valued policy, the 'measure' of dam- 
 ages is the amount of the valuation. In other cases the 
 valuation will be opened. 
 
 Illustrations. 
 
 (a) The insurance is on a cargo of flour for New Orleans, valued 
 at 14.50 per barrel. The measure of damages for a total loss is the 
 amount of the valuation, not the market value in New Orleans.' 
 
 (b) Cargo is insured at £8000. This means a full cargo. If after 
 discharging a part there is a total loss, the insured only recovers a 
 proportionate share of the amount.* 
 
 ' Phillips on Insurance, § 1188. 
 
 ' Ibid. § 1183. 
 
 ° Portsmouth Ins. Co. v. Brazee, 16 Oh. 81. 
 
 ' Tobin V. Harford, 13 C. B. (n. s.) 791; 17 id. 528. 
 
PAETICITLAR CLASSES OF CONTRACTS. 291 
 
 Life insurance differs from fire and marine insurance in the 
 fact that the contract is not one of indemnity. It is a contract 
 to pay a given sum of money in a certain event, the considera- 
 tion being the premiums paid. Here, as elsewhere, it is held 
 generally that wager poUcies are invalid; that is, that the in- 
 sured must have an interest in the life to warrant his taking out 
 a policy. But the interest may be of almost any sort, — as 
 that of a wife in the Ufe of her husband, a child in that of its 
 parent, a sister in that of a brother, or a creditor in that of his 
 debtor ; and the important point is that, the interest once estab- 
 lished, the amount to be recovered is not measured by it, but by 
 the policy. 
 
 Rule. 
 
 91. On a policy of life insurance the sum insured is the meas- 
 ure of damages. In case of cancellation, it is such a 
 sum as will pui the plaintiff in aw good a situation as< 
 before. 
 
 Illttsteations. 
 
 (a) D. effects insurance on his life paji^able to R. for flOOO, D.. 
 paying the premium himself, and owing R. $140. The intention; 
 of the parties is that R. shall pay the balance to D.'s widow. R. is- 
 entitled, on the death of D., to recover the whole amount.' 
 
 (6) In a suit on a life policy, the trial judge charges as follows :■ 
 "Where a man effects an insurance upon his life, the amount to be- 
 recovered is the amount insured; there can be no other measure. 
 In such cases insurers are bound to the full amount of such insurance, 
 without proof of the value of interest to that extent." This is not 
 open to exception.^ 
 
 (c) A policy is wrongfully cancelled. Plaintiff recovers the pre- 
 miums paid with interest.' 
 
 {d) The plaintiff is several years older than when he took out 
 the policy. He may recover the amount necessary to obtain a new 
 policy.* 
 
 • Am. L. & Health Ins. Co. v. Robertshaw, 26 Pa. St. 189. 
 2 Trenton M. L. & F. I. Co. v. Johnson, 24 N. J. L. 576, 581, 587. 
 ' Strauss v. Mut. Reserve Fund Life Asso., 126 N. C. 971 ; 54 L. R. A.. 
 605. 
 
 ' Braswell v. Am. Life Ins. Co., 75 N. C. 8. 
 
292 ELEMENTS OP THE LAW OF DAMAGES. 
 
 The foregoing are cases of breach of a simple promise to pay 
 a sum certain on the death of the insured. There are, of course, 
 numerous other kinds of life insurance, and the breach may 
 take different forms. The underlying principle applicable to 
 all is compensation — the value of the contract. 
 
 Illustration. 
 
 The breach is wrongful cancellation of an assessment insurance 
 policy on the life of one no longer an insurable risk. The measure 
 of damages is not the premiums paid, but the amount of the policy 
 less cost of carrying to maturity, all items to be calculated on the 
 basis of the legal rate of interest as of the date of cancellation.' 
 
 It seems hardly necessary to pursue the subject of insurance 
 further here. The foregoing rules and illustrations show that 
 the general principles relating to damages are the same here as 
 'elsewhere. The contract of insurance assumes a great many 
 forms, and the liquidation on a breach may present a question 
 of extreme simplicity, as in the case just referred to, or one of 
 extreme complexity, as in many cases of adjustment of the rights 
 •of ship, freight, and cargo under a marine policy, in which expert 
 adjusters have to be called in to assist the court; but in all 
 cases the underlying principle is that whatever form the con- 
 tract takes, or however difficult to calculate the exact amount 
 of the injury, the plaintiff must be put in the same position as 
 if the contract had not been broken. 
 
 Agency. — The relation of principal and agent differs from 
 that of master and servant in the fact that it is not a domestic 
 relation, involving the idea of service as a sort of property; but 
 may be treated as growing out of a contract, by which one en- 
 gages to perform certain acts for the other, the principal being 
 responsible to third persons for their performance. The field of 
 agency covers everything which can be done by one person acting 
 in the place and stead of another, and there is consequently 
 hardly any Hmit to the questions that may arise relating to the 
 
 ' Mutual Reserve Fund L. Asso. v. Ferrenbach, 75 C. C. A. 304; 144 
 Fed. 342. 
 
PARTICULAR CLASSES OP CONTRACTS. 293 
 
 measure of damages. The principal may bring an action 
 against the agent to recover damages for breach of his duty as 
 agent; and according as the agency was to sell, to buy, to insure, 
 to rent, to manage, or to invest, the measure of damages will be 
 different. The agent may bring an action against the principal 
 for loss or damage incurred in performing the duties intrusted 
 to him, and here again the extent of the recovery will depend 
 upon the nature of the duties. The chief difference between 
 the two cases will be that in the first, the breach being established, 
 the question is one of the elements of injury and extent of recov- 
 ery; in the latter the question is rather whether the loss or 
 damage has been proximately caused by the agency. 
 
 Cases of agency are treated here under the head of contract, 
 chiefly for the reason that the relation of principal and agent 
 involves an undertaking or agreement by one person to do 
 something for another, and that, there being an agreement inter 
 partes, there would seem to be always a right to nominal damages 
 as for a breach of contract.' It must be said, however, that viola- 
 tions of the duties of agency often assume the character of torts, 
 as in the case of conversion,^ and that the relation itself differs 
 from that involved in the ordinary notion of contract from the 
 fact that it is an engagement not only to do something, but to do 
 it for and in the stead of the other contracting party. It has been 
 pointed out that ordinary contracts differ from torts in the fact 
 that the plaintiff usually sues in the one case to recover the value 
 of a bargain, in the other to recover for the consequences of an 
 act. In the case of agency it may b^ either. Suit may be brought, 
 exactly as in tort, to recover for some positive act in violation of 
 instructions, or for the neglect of some positive duty impUed in 
 the relation; very often, therefore, whatever name we give the 
 relation, the action will have the characteristics of an action of 
 tort. On the other hand if the agency is for the purpose of 
 securing to the principal the benefit of a bargain, the result 
 will be like that in an action of contract. 
 
 Sometimes there will be an alternative rule of damages, for 
 
 ' Blot V. Boiceau, 3 Comst. 78; First Nat. Bk. v. Fourth Nat. Bk., 77 
 N. Y. 320. 
 
 ' Brown V. McGran, 14 Pet. 479, 496. 
 
294 ELEMENTS OF THE LAW OP DAMAGES. 
 
 the principal may often, as in the case of a sale by his agent at an 
 unauthorized time, disaflBrm the sale, and bring an action for 
 conversion, or afl^ming the sale, recover merely for the difference 
 between what the property has realized, and what it would have 
 realized at the time fixed. In the one case, in many jurisdictions 
 he would be entitled to the benefit of the rule as to higher inter- 
 mediate value; in the other the damages would be measured 
 solely by the actual loss. In general it may be said that there 
 is almost no limit to the variety of forms which the measure 
 of recovery in cases of agency may assume. 
 
 A suit by the agent against the principal for damages occa- 
 sioned by performing his duties as agent closely resembles a 
 suit on a contract of indemnity. The duty to indemnify in this 
 case, however, needs no express contract to support it; it 
 springs from the relation of the parties to one another. 
 
 In suits against bankers and banks for failure to collect 
 commercial paper through negligence, the measure of damages 
 is the actual loss sustained, not the face of the paper. Even if 
 the theory be adopted that 'prvma facie the plaintiff is entitled to 
 recover the face value, the result in the end is the same, as the 
 defendant may show any circumstances which go to reduce the 
 loss.* 
 
 Rules. 
 
 92. In an action by principal against agent for breach of 
 
 obligation as such, the measure of damages is the loss 
 proximately caused. 
 
 93. In an action by agent against principal the measure of 
 
 damages is any loss proximately caused by the discharge 
 of the obligation of agency." 
 
 94. In an action by a third party against one wrongfidly 
 
 representing himself as agent, the measure of damages 
 is any loss proximately caused, including the costs of a 
 suit brought against the supposed principal. 
 
 ' Allen V. Suydam, 20 Wend. 321 ; Hendrix v. Jefferson County Savings 
 Bank (Ala.), 14 L. R. A. (n. s.) 686. 
 
 " The case closely resembles, if it is not identical with, one of indemnity. 
 The principal must make good, or indemnify the agent for any loss which 
 occurred in carrying out his instructions. 
 
particular classes of contracts. 295 
 
 Illustrations. 
 
 (o) A Pennsylvania bank sends a draft on a New York firm to 
 a New York bank for collection. Through delay in presentation 
 payment is refused, the drawees having failed ; the draft is there- 
 upon duly protested. In an action by the Pennsylvania bank 
 against the New York bank, it does not appear that the remedy 
 against the drawer has been exhausted; the plaintiff is only entitled 
 to nominal damages.* 
 
 (b) On a second trial, it is proved to have been decided in a suit 
 in Pennsylvania, that the drawer is discharged from all hability; 
 the plaintiff is now entitled to recover the full amount of the draft.* 
 
 (c) A check is received by a bank and credited to a depositor, 
 but there is negligence in making the collection, which causes loss. 
 The bank is not liable for the face of the paper, but for the amount 
 actually lost.' 
 
 (d) A foreign merchant, in the habit of insuring for his corre- 
 spondent here, receives an order to insure, which he fails to carry 
 out in accordance with his instructions; he is liable to the same 
 extent as if he were an underwriter.* 
 
 (e) In such a case, the measure of damages is the full amount 
 of the loss, less the premium, for this the owner would have had to 
 pay in any case. The rule does not mean that the agent becomes an 
 underwriter; he cannot, if the property remains uninjured, main- 
 tain a suit for the premium.* 
 
 (/) C. & Co., of Boston, direct their agents at Leghorn to in- 
 vest the freight to be earned by their vessel between Havana and 
 Leghorn, partly in tiles and partly in wrapping paper, and to re- 
 ship to Havana. The agents at Leghorn invest the whole in wrap- 
 ping paper. The actual value of the tiles at Havana is the measure 
 of damages." 
 
 , 6 
 
 > First Nat. Bk. v. Fourth Nat. Bk., 77 N. Y. 320 
 
 ' s. c. 89 N. Y. 412. 
 
 ' Jefferson County Savings Bank v. Hendrix, 147 Ala. 670; 1 L. R. A. 
 (n. s.) 246. 
 
 * De Tastett v. Crouisillat, 2 Wash. C. C. 132. 
 
 ' Storer v. Eaton, 50 Me. 219. 
 
 ' Bell V. Cunningham, 3 Pet. 69. This case was decided in 1830. On 
 the trial (5 Mason, 161, 171), the damages were left very much to the 
 discretion of the jury. No doubt at the present day the court would pre- 
 scribe the rule as above. 
 
296 ELEMENTS OF THE LAW OP DAMAGES. 
 
 (g) An agent directed to invest money in a first mortgage invests 
 it in a second mortgage; the land is sold to satisfy the prior lien, 
 and the investment is lost. The measure of damages is the amount 
 of the loan.' 
 
 (h) An agent authorized to collect arrears of rent and settle with 
 the tenant unlawfully takes a check covering also an amount due 
 himself. The check is dishonored. The measure of damages is 
 the full amount of the rent.^ 
 
 (i) A. as agent executes a contract to convey to B. his ward's 
 land, not having authority to do so. B.'s measure of damages is 
 the total loss caused by the false assertion of authority.' 
 
 (j) An agent acting within the scope of his employment is obliged 
 to defend a suit. He may recover the expenses of the suit from his 
 principal.* 
 
 » Shipherd v. Field, 70 III. 438. 
 
 ' Pap6 V. Westacott, [1894] 1 Q. B. 272. 
 
 ' LeRoy v. Jacobosky, 136 N. C. 443; 67 L. R. A. 977. 
 
 * Stocking V. Sage, 1 Conn. 619. 
 
CHAPTER XX. 
 
 CARRIERS. 
 
 Much of the confusion in the cases on the subject of contracts 
 of carriage has arisen from the attempt to treat the carriage of 
 passengers as if it were governed by the same principles as the 
 carriage of goods. From the analysis of the subject of damages 
 already made it is apparent that the determining factor in com- 
 pensation is the nature and extent of the injury inflicted, and that 
 the real reason why different principles govern in tort and con- 
 tract is that in most cases the injury inflicted by a tort is radically 
 different from that inflicted by a breach of contract. In the 
 case of the contracts just mentioned, the rules of compensation 
 can best be understood by bearing in mind that they present 
 every variety of feature from that of a contract involving solely 
 pecuniary injury, and the value of a bargain, to that of an injury 
 the consequences of which fall only upon the person and personal 
 rights. When a shipper makes a contract with a carrier, or 
 employs a carrier, who is under a public duty to transport for all 
 comers, to transport goods, we have the case of an ordinary 
 commercial contract, and the measure of damages is governed by 
 the rule in Hadley v. Baxendale. The suit is upon the contract, 
 and the measure of damages is always modified by special facts 
 within the contemplation of the parties. Many different species 
 of injury may arise, but the question to be settled always is, — 
 how much has been lost by the failure to deliver the goods at 
 the time and place fixed? Profits may be allowed, if con- 
 templated, and suflBciently certain; the value of a subcontract 
 may be recovered if within the contemplation of the parties ; in 
 general it may be said that there is a striking similarity with the 
 measure of damages for breach of contracts of sale.* 
 
 » IlUnois Central R. R. Co. v. Cobb, 64 lU. 128. 
 
298 ELEMENTS OP THE LAW OP DAMAGES. 
 
 On the other hand, while the transportation of passengers 
 involves the idea of a contract (the ordinary railway ticket is 
 evidence of a contract, and even if no ticket is purchased a 
 contract to carry on the one side and to pay on the other is 
 necessarily implied), there is also a duty independent of contract 
 arising from the fact that the contracting party is a common 
 carrier,* and for a violation of this duty an action of tort will lie.^ 
 But besides this, whatever the nature of the action the injury 
 falls primarily upon the person and personal rights. In the other 
 case, that of the carriage of goods, the injury falls primarily 
 upon property or contract rights. It is impossible that the law 
 should apply the same measure of damages in the two cases. 
 
 Cabriage op Goods. — The carrier may refuse or neglect 
 to transport; he may not deliver at all, or only in part; the 
 property may suffer depreciation in his hands; there may be 
 delay in transportation, through which the goods, when delivered, 
 are diminished in quantity or depreciated in quality, or (merely 
 from lapse of time) they may have declined in market value. He 
 may deliver to the wrong person, or at the wrong time, or place. 
 The injury in all these cases will not be the same ; nevertheless 
 there is for them all a common standard of compensation, which 
 is the value of the delivery of the article at the time and place, 
 and in the condition in which it should have been dehvered. 
 This is the value of the bargain, and throughout the whole range 
 of contracts relating to money or money's worth, as has been 
 seen, when we speak of a normal or typical measure of damages, 
 the value of the bargain is what we have in mind. There may, 
 in addition to this, be all sorts of special damages, and on the 
 other hand, the nature and extent of the diminution of the value 
 will vary with the character and extent of the injury; but what 
 measures the damages, and is capable of statement in the form 
 of a rule of law, is the diminution in the value of the bargain 
 completely performed. 
 
 ' Railroad Co. v. Lockwood, 17 Wall. 357, 383. 
 
 " If it be maintained that the action of tort really rests on the negligence 
 involved in the breach of the implied contract, the result so far as damages 
 are concerned is not different. 
 
CABKIEES. 299 
 
 The value is always fixed at the place of destination. Ordi- 
 narily this presents no difficulty ; but where one carrier receives 
 goods to be carried from A. to B., the intention of the shipper 
 being that another carrier shall take them from B. to C, the 
 ultimate point of destination, the intention of the parties may be 
 that the UabiUty of the carrier shall end at B., or that he shall see 
 the articles deUvered at C. This is a question of the interpreta- 
 tion of the contract, and the HabiUty under it; or, law and 
 custom may fix the termination of the first carrier's liability at 
 B., or extend it to C. The first point to be settled (the com- 
 monest case is that of connecting lines of raihoad) is, therefore, 
 what is the point ,at which the carrier under the particular 
 contract, and the rule of law existing in the jurisdiction, is 
 bound to deliver? The value at this point, when ascertained, 
 will always govern. The time for estimating the value is neces- 
 sarily the time fixed for delivery in the contract, or if there is 
 none, a reasonable time. 
 
 At common law the duty of a common carrier is said to be 
 that of an insurer. That is, he is responsible for goods intrusted 
 to him in any event. The only excuse available to him is the 
 act of God (something out of the course of nature) or of the 
 public enemy. Consequently, unless a special contract is made 
 with him, the plaintiff in a case of non-deUvery need show 
 nothing more than this. To call the carrier an insurer is a 
 metaphor. His duty at common law is to deUver; the mere 
 fact of non-dehvery entitles the plaintiff to compensation. It is 
 not properly a question of neghgence (for no amount of care 
 will excuse), but one of absolute Uability. This case seldom 
 arises in modern times, because a special contract is generally 
 made by means of a bill of lading; but the common-law Uabihty 
 must be always distinguished from the liabiUty founded upon 
 the idea of the requirement of a certain degree of care. 
 
 The duty of the common carrier arises principally from the 
 public employment which he exercises; ' still his right to payment 
 in proportion to the risk he assumes is always recognized, and 
 
 • Coggs V. Bernard, 2 Ld. Ray. 909, 918; Magnin v. Dinsmore, 62 N. Y, 
 35, 39. 
 
300 " ELEMENTS OP THE LAW OF DAMAGES. 
 
 as the amount and kind of care required in the case of some 
 articles is different from that which is necessary in the case of 
 others (e. g., jewels and money, perishable and fragile articles, 
 explosives, etd.)' he may refuse to undertake any liability beyond 
 a specified pecuniary limit, unless the owner discloses the value 
 of the goods and pays an added price for the increased risk. 
 Such restrictions if brought to the notice of the shipper are 
 binding; and the carrier can now only be liable beyond the Umit 
 ■ fixed (when the value is not disclosed) in case of negligence.^ 
 That is, he is no longer at common law bound to answer for loss 
 ill any event, but is liable solely for something which the law will 
 regard as a wrong or breach of contract on his part. As the 
 effect of the notice on the one side, and the failure to disclose the 
 value on the other, amounts to an understanding incorporated in 
 the contract of shipment, that the goods are not of exceptional 
 value, it would seem as if .any want of the ordinary care which 
 would be expected of a bailee for hire in transporting articles 
 would be enough. But, however this may be, legal neghgence 
 once established, the measure of damages cannot be affected by 
 an attempt to restrict liability which has failed. Consequently in 
 any case in which the notice is ineffectual, owing to the carrier's 
 negligence, the measure of damages is governed by the ordinary 
 rules. 
 
 Rule. 
 
 95. For a carrier's failure to transport goods the measure of 
 damages is the difference between the value of the goods 
 at the time and place of breach, and what would have 
 been their value at the time and place fixed for delivery.' 
 
 ' It must not be supposed that this fact is in conflict with the remark 
 made elsewhere, that on the question of liability there are no degrees of 
 negligence. Negligence, for the purpose of establishing liability, is always 
 the absence of the amount of care requisite under the circumstances, but 
 what is proper care in one case is not in another. In New York a carrier 
 may by express contract exempt himself even from Uability for negligence. 
 Hopsapple v. Rome, W. & O. R. R. Co., 86 N. Y. 275; but the doctrine is 
 local, opposed to public policy and the general current of authority. See 
 the whole subject fully considered in Railroad Co. v. Lockwood, 17 Wall. 357. 
 
 " Jennings v. Grand Trunk Ry., 127 N. Y. 438, 450. 
 
 ' Here, as elsewhere, the principle of avoidable consequences gives an 
 
careiees. 301 
 
 Illustrations. 
 
 (a) A carrier agrees to transport lumber, railroad ties, etc., from 
 Canada to Boston. At the time of making the contract H. informs 
 the company that he enters into it for the purpose of enabling him 
 to make other contracts to sell and deUver railroad ties in Boston. 
 For failure to transport, the measure of damages is the difference 
 between the market price in Boston and Canada, at the time when 
 the defendant should have performed, less the cost of transportation ; 
 the notice, not being of any contract actually entered into, is of no 
 avail to increase the damages.' 
 
 (6) O. sues M. for refusal to transport grain from New York to 
 Liverpool in the ship Yorkshire as agreed, at 16 pence sterling per 
 bushel. The proof is that O. was ready to ship, but that M. refused 
 to receive the grain ; and that the price of freight to Liverpool rose 
 from 16d. at the time of the contract to 19d. before the Yorkshire 
 sailed; the trial judge directs the jury to give nominal damages. 
 There must be a new trial ; the measure of damages is the difference 
 between the agreed and the market rate.^ 
 
 (c) H. makes a contract with W. & Co., owners of the ship 
 Humboldt, for tonnage from Calcutta to Boston on 150 tons of 
 goods at S14.50 per ton; the master fails to take the ship to Cal- 
 cutta. The rate of tonnage at Calcutta at the time agreed upon is 
 $18.50 per ton. The measure of damages is $600 with interest.^ 
 
 (d) A carrier agrees with E., a salt dealer in Chicago, to trans- 
 port salt for him from Bay City to Chicago by water. On breach, 
 E. has it carried by rail in lots, as he wants it, and sues to recover 
 the difference in cost of transportation. This is not the measure of 
 damages if such a method of transportation is unprofitable. E. 
 can only recover the difference in market value at the two places, 
 less the cost of transportation as contracted for.* 
 
 alternative rule. If the circumstances are such that a prudent man would 
 forward the goods by some other means, the measure of damages will be 
 the difference in expense of such transportation. This is the more usual 
 case of the two, but it is not the normal rule, because it does not represent 
 the value of the bargain, but the expense of the plaintiff in avoiding the 
 normal loss. 
 
 ' Harvey v. Conn. & Pass. R. R. R. Co., 124 Mass. 421. 
 
 ' Ogden V. Marshall, 4 Seld. 340. See this case explained in Nelson v. 
 Plimpton Fire-Proof E. Co., 55 N. Y. 480. 
 
 ' Higginson v. Weld, 14 Gray, 165. 
 
 * Ward's C. & P. L. Co. v. Elkins, 34 Mich. 439; a prudent man would 
 
302 ELEMENTS OF THE LAW OP DAMAGES. 
 
 (e) C. tenders parcels for carriage to a railway company at the 
 ordinary rate ; the company refuses to transport, and C. is obliged 
 to send them by a circuitous route and at a greater expense. He 
 may recover for this, but not for a loss of business.' 
 
 (f) A carrier places unreasonable restrictions on a shipper, 
 which discriminate against him, and refuses to receive his ship- 
 ments unless he complies. He may recover for loss of custom by 
 not being able to ship.^ 
 
 (gr) A railroad company undertakes to transport lumber for a 
 plank road company from W., and dehver it at C, but fails to do 
 so. Some of it is in consequence lost, and some delayed. The 
 measure of damages is the difference between th6 value of the lum- 
 ber at the two points, less the cost of transportation, provided that 
 lumber of the kind and quantity required is obtainable at C. ; in 
 addition, natural consequences from the delay, stoppage of work, 
 payment of wages, and expenses.' 
 
 (h) W. agrees with F. to be ready with a ship in the river Tyne, 
 to receive a cargo of coal for Havre. He buys the coal at 10s. 6d. 
 a ton. At the time fixed the ship is not ready, and owing to the 
 custom of the colUery trade, W. cannot get a cargo of coal until he 
 has a ship to carry it. He is therefore obliged to buy again at 1». 
 
 not pursue such a course; the alternative rule failing, the ordinary measure 
 of damages is applied. 
 
 ' Crouch V. Great Northern Ry. Co., 11 Ex. 742. Pollock, C. B., saya 
 that there was nothing in the declaration to warrant such a recovery. 
 Had the declaration been properly framed, the question presented would 
 have been a different one. The plaintiff was himself a carrier, who for- 
 warded parcels by rail (as is done by express companies in the United 
 States). This fact the defendants must have known, and also. that in- 
 ability to deliver would naturally injure the plaintiff's business. Such a 
 Joss would seem to be within the contemplation of the parties; the diffi- 
 culty would be rather one of proof; but a case may easily arise where the 
 business of a shipper might be totally destroyed by a railway company's 
 refusal to transport. See case (/) above. 
 
 ' Lancashire & Y. Ry. Co. v. Gidlow, L. R. 7 H. L. 517. 
 
 ' Pennsylvania R. R. Co. v. Titusville & P. Plank Road Co., 71 Pa. St. 
 350. Under the rule of avoidable consequences, the defendants may show 
 that portable mills might have been erected and lumber manufactured by 
 the plaintiff. Ibid. 356. The report of the case is not very clear, but two 
 distinct heads of damage, loss of property, and delay in delivering it, 
 seem to be involved. Extra cost for different means of transportation as 
 to part of the lumber was of course recoverable. Ibid. 361. 
 
CAKEIEES. 303 
 
 6d. advance, and ships at an advanced rate of freight. His measure 
 of damages is the increased freight, and also the difference in the 
 cost of the coal.* 
 
 (i) R. agrees to furnish M. a boat for his use, to transport ex- 
 cursionists at four dollars a day. The boat is not furnished. R. 
 knows of the intended use. The measure of damages (in the ab- 
 sence of evidence that M. hired or could have hired another boat) 
 is what a similar boat would have been worth, taking into account 
 the capacity of the boat, the state of weather and tide, and also 
 evidence that M. had engaged passengers for the boat.' 
 
 2 
 
 Rule. 
 
 96. For nonrdelivery the measure of damages is the value of 
 the goods at the time and -place fixed for delivery? 
 
 Illustrations. 
 
 (a) A cargo is shipped to Liverpool and not delivered. Before 
 the shipment, the consignors had sold the cargo "to arrive" at 
 £7 2s. 6d. per ton; the market value at the time when the ship 
 should have arrived is £7 7*. 6d. The market value, less the un- 
 paid freight, and not the price obtained on the sale "to arrive," is 
 the measure of damages.* 
 
 ' Featherston v. Wilkinson, L. R. 8 Ex. 122; consequential damages 
 within the contemplation of the parties. 
 
 ' Mace V. Ramsey, 74 N. C. 11. This case should be distinguished 
 from the others. It is not an agreement to furnish transportation, or to 
 carry; but to furnish the means of transportation. 
 
 ' The rule as generally laid down includes the statement that unpaid 
 freight must be deducted. But this is not an essential part of the rule; 
 if the freight has been paid, it is not deducted. 
 
 " Rodocanachi v. Milbum, 18 Q. B. D. 67. This case is believed to 
 state the true principle. Some remarks in one of the opinions in a lead- 
 ing New York case are opposed to it. In the New York case the carrier 
 limits his liability to $50, unless the value of the goods is stated by the 
 shipper. The owner of goods ships them from New York to Memphis, 
 sending to the consignees a bill with prices, amounting to 81,491.50, ac- 
 companied by a letter advising them of the shipment to them for selec- 
 tion. To the carrier he does not disclose the value of the goods. There 
 is evidence tending to show that the value of the goods in Memphis would 
 have been from $2,300 to $2,500. The goods not being delivered, if not- 
 
304 ELEMENTS OP THE LAW OF DAMAGES. 
 
 (b) Goods are shipped at New York for Boston ; they are totally 
 destroyed by fire while in the carrier's custody. The measure of 
 damages is the value of the goods.' 
 
 (c) A carrier fails to deliver a cargo of lumber at Buenos Ayres. 
 The measure of damages is the value of the lumber at the time 
 when and place where it should have been delivered, with 
 interest.^ 
 
 (d) A carrier contracts to carry hogs to N., it being the intention 
 of the consignor to take them on to S. to market. The measure of 
 damages is the difference in value at N., not at S.^ 
 
 withstanding the limitation of liability the carrier is still liable for negli- 
 gence, the measure of damages is held not to be the value in Memphis, 
 but the price fixed by the consignor, on the ground that the benefit of the 
 contract could have been no more; and no other value could have been in 
 the contemplation of both parties. Magnin v. Dinsmore, 53 N. Y. 652; 
 56 id. 168 ; 62 id. 35; 70 id. 410. But if the exemption fails, and the lia- 
 bility as common carrier attaches, surely the value as between shipper and 
 consignee is no concern of the carrier. Suppose the goods had been 
 jewels, inherited by the consignor, and consigned for the purpose of a gift, 
 to be selected by the consignee, would the fact that they had cost the con- 
 signor nothing affect his right to recover the actual value at the place of 
 delivery? The benefit of the contract is the advantage to be had from de- 
 livery in Memphis, not the benefit of a possible sale of which the carrier 
 knew nothing. The parties could contemplate nothing but the loss of the 
 value of the goods in Memphis, whatever that might be. But the case of 
 Magnin v. Dinsmore really turned on a wholly different point, — the ques- 
 tion of liability. The question involved in the decision in which the 
 measure of damages is discussed was : Did the silence of the plaintiff as 
 to value amount to legal fraud which would relieve the defendant from 
 any responsibility beyond the limit of $507 and it was held that it did, 
 unless there was some "misfeasance," or "abandonment of his character 
 as carrier." 62 N. Y. 45. The result was that the case ended in the 
 afiirmance of a verdict for $50 and interest, and the remarks of Folger, 
 J., as to the measure of damages, are obiter. The cases on this subject 
 present more than ordinary difficulty, because "negligence " sometimes 
 means mere failure to deliver (although at common law, as already ex- 
 plained, there was really no question of negligence at all), sometimes 
 carelessness. The confusion recalls that between " malice in law " and 
 " malice in fact." See Rathbone v. N. Y. Central & H. R. R. R. Co.; 
 140 N. Y. 48. -t>. 
 
 ' Faulkner v. Hart, 82 N. Y. 413. 
 
 " Spring V. Haskell, 4 All. 112. 
 
 ' Sangamon & M. R. R. Co. v. Henry, 14 111. 156. 
 
carriers. 305 
 
 Rule. 
 
 97. For injury during transportation, the measure of damages 
 is the difference between the value of the goods at the 
 tims and place of delivery, as damaged, and what it 
 would have been had they been delivered in good order. 
 
 Illustrations. 
 
 (a) Butterine shipped to New Orleans is damaged on the way 
 through the carrier's negligence, and sold on arrival at its market 
 value, 7j cents per pound. Had it arrived in good order the market 
 value would have been from 15 to 16 cents per pound. The plain- 
 tiff is entitled to the difference with interest.' 
 
 (6) The carrier transports cattle in cars in which he wrong- 
 fully posts a notice that they are from an infected district. For the 
 depreciation in market value caused by this, the shipper may 
 recover.* 
 
 (c) A cargo of beans, to some extent injured, may easily be 
 dried by the carrier, and saved from further injury. This is not 
 done. The owner's measure of damages is the difference between 
 the damage which they would probably have sustained if dried, and 
 that which they actually sustained by being carried to the port of 
 destination imdried, less the expenses of drying.' 
 
 (rf) The action is for injuries to a jackass. Special damages 
 are claimed on the ground that the animal was bought for the sole 
 purpose of being stood for service, and that the value of his use for 
 this purpose for the season was $400. The highest estimate of 
 diminution in actual value is 1200, but there is also proof that it is 
 much less. The jury are instructed that plaintiff may recover the 
 value of the use. There is a verdict for $200. There must be a 
 new trial ; there is nothing to show that defendant knew of the in- 
 tended use; nor is there any proof of outstanding contracts for 
 service. The mere fact that the verdict is for $200 does not show 
 that the jury was not influenced by the charge allowing the recovery 
 of profits.* 
 
 (e) B., a carrier, agrees with H. to forward two pictures for him 
 
 ' Western Mfg. Co. v. The Guiding Star, 37 Fed. R. 641. 
 ' Wabash R. R. Co. v. Campbell, 219 111. 312; 3 L. R. A. (n. s.) 1092. 
 ' Notara v. Henderson, L. R. 7 Q. B. 225. 
 * Chicago, B. & Q. R. R. Co. v. Hale, 83 111. 360. 
 
 20 
 
306 ELEMENTS OF THE LAW OF DAMAGES. 
 
 from London to Paris. Defendant agrees with B. to transport 
 them; the pictures fall into the sea and are damaged. H. brings 
 an action against B., who is advised rightly that he has no defence, 
 and notifies the defendant. The defendant lets the action take 
 its course; B. defends and is defeated. B. may now recover of 
 the defendant the damages assessed as the injury to the pictures in 
 the first action, but not the costs of the unsuccessful defence. They 
 are not a natural consequence of the defendant's default.* 
 
 Rule. 
 
 98. FcT delay the measure of damages is the difference between 
 the value of the goods at the tiTne and -place fixed for de- 
 livery and at the time and place of their actual delivery. 
 
 Illtjstrations. 
 
 (o) W., a cap manufacturer, dehvers to a carrier cloth bought 
 to make up into caps, to be carried to M. Owing to delay in de- 
 hvery, he loses the season ; the carrier knows nothing as to his busi- 
 ness or intentions. His measure of damages are not the profits he 
 might have made, but the diminution in value of the goods owing 
 to the time for finding customers having passed.^ 
 
 (b) A carrier unreasonably delays the delivery of goods in- 
 trusted to him for carriage, and their market value meanwhile 
 falls. The court charges that the measure of damages is interest 
 during the period of delay. The plaintiff's contention is that he is 
 entitled to recover the difference between the market value of the 
 goods at the time and place of acttial delivery and at the time and 
 place fixed for delivery. The latter is the true rule.' 
 
 ' Baxendale v. London, C. & D. Ry. Co., L. R. 10 Ex. 35. Cf. Agius 
 V. Great Western Colliery Co., [1899] 1 Q. B. 413. 
 
 ' Wilson V. Lancashire & Y. Ry. Co., 9 C. B. (n. s.) 632. In this case 
 Btlbs, J., distinguishes between profits, as including the increased value 
 from the special use to which plaintiff intended to apply the goods, from 
 diminution in exchangeable value, as so much subtracted from the in- 
 herent value of it, p. 645. This distinction, however, is only incidental, 
 for profits may be measurable solely by market value. In such cases as 
 the above the reason why the plaintiff cannot recover profits as such is 
 that there is no certainty that he would have made any. 
 
 ' Cutting V. Grand Trunk Ry. Co., 13 All. 381 ; s. p. Weston v. Grand 
 Trunk Ry. Co., 64 Me. 376; ace. Sherman v. Hudson R. R. R. Co., 64 
 N. Y. 254. 
 
CARRIERS. 307 
 
 (c) The contract is to deliver cotton to S. in Boston; S. sells 
 it in anticipation of arrival, and before the delivery to the carrier, 
 and contends that the decline in market value between the date of 
 the sale and the actual arrival of the cotton is the measure of dam- 
 ages. The ordinary measure of damages is the true one; the 
 carrier had no notice of the sale "to arrive." ' 
 
 (d) A hop-grower sends to London by rail some pockets of hops, 
 consigned to a purchaser. Owing to delay the hops are damaged 
 by wet, and the purchaser, as he is entitled to do, refuses to receive 
 them. The consignor dries the hops, thus making them as good as 
 before for actual use, but meantime the market has fallen. He sells 
 the hops, and is entitled to recover from the carrier the difference 
 between what they bring and what they would have brought if 
 deUvered in time.^ 
 
 (e) H. is under a contract to supply a quantity of military shoes 
 at a certain time, in London, at an unusually high price. He delivers 
 them to a railway company, with a notice of the contract, and that 
 unless so deUvered the shoes will be thrown back on his hands; 
 but no notice is given of the price. The shoes are not delivered 
 within the time fixed. The measure of damages is the expense and 
 loss on a re-sale at the market price, not the difference between the 
 price obtained on a re-sale, and the exceptional price fixed in the 
 first contract; the parties did not contemplate it.' 
 
 (/) The carrier has notice that the contract is a "penalty con- 
 tract," the fact being that there is a forfeit of $10 a day for every 
 day's delay in delivery. The measure of damages is the amount 
 actually deducted by the consignee from the purchase price under 
 this clause.* 
 
 (g) The contract is to transport live-stock to Chicago. It should 
 have arrived in time for the market on Thursday, but does not 
 arrive till Friday, and there is no available market until Monday. 
 
 » Scott V. Boston & N. O. S. S. Co., 106 Mass. 468. 
 
 ' Collard v. South Eastern Ry. Co., 7 H. & N. 79. In such cases as 
 this, it is to be taken for granted that the price in the contnact and the 
 price on the re-sale are the best evidence of actual value. 
 
 • Home V. Midland Ry. Co., L. R. 7 C. P. 583. The opposite conclu- 
 sion seems to have been reached in Illinois Central R. R. Co. v. Cobb, 
 64 111. 128, in which case the shipper was allowed to recover on^the basis 
 of the price fixed in the contract. The rule in the English case seems the 
 true one. The carrier can hardly be supposed to contemplate a loss, the 
 extent of which he has no means of knowing. 
 
 * Railroad v. Cabinet Co., 104 Tenn. 568; 50 L. R. A. 729. 
 
308 ELEMENTS OP THE LAW OP DAMAGES. 
 
 It is sold on Monday, Tuesday, and Wednesday. If it could all 
 have been sold on Monday, there can be no recovery beyond that 
 day. The measure of damages includes depreciation in value, 
 shrinkage in weight, the expense of keep, and interest.^ 
 
 (h) The action is for damages'to ink through freezing, owing to 
 delay in transportation. The measure of damages is any loss or 
 depreciation in value owing to this cause; the plaintiff cannot re- 
 cover for time lost in waiting for the ink ; such damage is not direct.^ 
 
 (i) A commercial traveller deUvers a parcel containing samples 
 of jewelry to a carrier at Oxford, to be conveyed to Liverpool. The 
 carrier is not notified of the contents of the parcel, or purpose of the 
 consignment. There is a delay in deUvery, and the plaintiff mean- 
 time remains waiting at a hotel, making inquiries. He cannot 
 recover the amount of his hotel bill.^ 
 
 (j) A quantity of wool is deUvered to a railway to be carried to 
 Boston, and the carrier is notified that the goods are sold at a price 
 given, provided they are delivered in time. Owing to delay there is 
 depreciation. The measure of damages is the difference between 
 the value when delivered, and the contract price, together with ex- 
 
 ' Ayres v. Chicago & N. W. Ry. Co., 75 Wis. 215. The expenses of 
 keep in the case of live-stock transported to market would seem to be 
 consequential damages within the contemplation of the parties. 
 
 ^ Ingledew v. Northern R. R., 7 Gray, 86. The damages are not direct, 
 because the measure of damages involved in the cause of action for delay 
 is solely the difference in value of the goods at the time when they should 
 have been, and when they have been delivered; anything else is conse- 
 quential upon this. But Thomas, J., goes on to say that they are remote. 
 This is a dictum, and may well be questioned. Nothing would seem to 
 be less unlikely than that the owner of goods should lose time through 
 waiting for them when delivery is delayed. Such daiaages, however, not 
 being direct, i. e., necessary, they coiild not be recovered without being 
 specially alleged, and the attempt in this case seems to have been to 
 recover them under a general allegation of damage. Cf. Hales v. London 
 & N. W. Hy. Co., 4 B. & S. 66, in which damages for money spent in look- 
 ing for the goods were allowed. 
 
 ' Woodger v. Great Western Ry. Co., L. R. 2 C. P. 318. Bovill, C. J., 
 gives as a reason that such damages were not within the contemplation of 
 the parties. But there is another reason more conclusive, — that his 
 hotel expenses represent the cost of his entire board and lodging during 
 the period of delay. This entire sum is not an expense caused by the 
 delay, for he must have been at expense for both in any case, — very 
 likely at the same expense. 
 
 / 
 
CARRIERS. 309 
 
 penses incurred in looking up the wool, and interest on both 
 sums.' 
 
 (k) Delay in transportation of scenery and other theatrical 
 properties. The carrier has full knowledge that they are to be 
 used in an exhibition, and that the owner is at a large expense every 
 week in the matter. The measure of damages is the ordinary gross 
 earnings less expenses, if any, saved through the delay.' 
 
 . 2 
 
 Rule. 
 
 99. If the goods are not diminished in value, the measure of 
 damages for delay is the value of their use during the 
 period of delay. 
 
 Illustrations. 
 
 (a) The action is against a carrier for delay in forwarding money.. 
 The measure of damages is the interest on the money during the- 
 period of delay. ^ 
 
 (6) The action is for delay in delivering machinery. The meas- 
 ure of damages is the value of the use of the machinery; or th& 
 sum for which the plaintiff might have hired like machinery.* 
 
 Cases may arise involving delay, non-delivery, and refusal tO' 
 transport. The value which the goods would have had if de- 
 livered properly, still governs. V. contracts with L., a produce- 
 dealer, to carry a quantity of peas from Canada to New York,, 
 but fails to carry them further than Burlington, o-wing to the 
 freezing of the waterways beyond that point. L., being unable to 
 obtain them in any other way, replevies them at Burlington, and 
 sends them to Boston for a market; this is found to be a prudent 
 course. The measure of damages is the difference between what 
 they would have brought at New York if deUvered at the proper 
 time, and the amount realized at Boston, with interest.' 
 
 In the case of misdelivery, the carrier may deliver to an 
 
 ' Deming v. Grand Trunk R. R. Co., 48 N. H. 455. 
 
 ' Weston V. Boston & Me. R. R., 190 Mass. 298; 4 L. R. A. (n. s.) 569.. 
 
 ' U. S. Express Co. v. Haines, 67 111. 137. 
 
 * Priestly v. Northern Indiana & C. R. R. Co., 26 111. 205. 
 
 ' Laurent v. Vaughn, 30 Vt. 90. 
 
310 ELEMENTS OF THE LAW OF DAMAGES. 
 
 unauthorized person, or deliver to the owner, but at a wrong 
 place or time. In the first case the act amounts to a conversion, 
 and the measure of damages is consequently the same as in the 
 case of non-delivery, — the value of the goods, with interest, 
 less any unpaid freight.' If the owner receives them at the wrong 
 time or place, he will be entitled to his actual damages, whatever 
 they may be. They may be merely nominal ; ^ or they may 
 amount to the cost of removing the goods to the place where they 
 should have been deUvered.' 
 
 As a general rule the measure of damages for loss or delay in 
 transporting goods does not differ in Admiralty from that of the 
 Common Law. An exception is said to be necessary in the case 
 of long sea voyages,^ when there is merely a fall in market value 
 between the time when the goods ought to have been delivered 
 and -the time when they are delivered. The reasons given are, 
 first, that goods may be easily sold " to arrive ; " that is, that the 
 owner may protect himself against loss ; second, that there is no 
 certainty that they will be sold immediately on arrival. But the 
 diflSculty with this reasoning is that a shipper is not bound to sell 
 the goods at all, and even if he does sell them, or intends to sell 
 them, this does not affect the undertaking of the carrier in any 
 way, which is simply to be responsible for the dehvery of goods 
 at a certain time and place. If the value of the goods then 
 and there does not fix the damages, what other guide is 
 there? 
 
 In England it seems to be now established that there is no rule 
 of law that damages cannot be recovered for loss of a market on 
 a contract of carriage by sea. "Wherever the circumstances 
 admit of calculations as to the time of arrival and the probable 
 fluctuations of the market being made with the same degree of 
 reasonable certainty in the case of a sea as of a land transit, 
 there can be no reason why damages for late delivery should not 
 be calculated according to the same principles in both cases." ' 
 
 » Forbes v. Boston & Lowell R. R. Co., 133 Mass. 154. 
 
 ' Rosenfield v. Express Co., 1 Woods, 131. 
 
 » Chicago & N. W. Ry. Co. v. Stanbro, 87 111. 195. 
 
 • The Parana, 1 P. D. 452; 2 P. D. 118. 
 
 " Dunn V. Bucknall, [1902] 2 K. B. 614. 
 
CARRIERS. 311 
 
 Limitation op Liability by Valuation. — It is generally 
 held that a carrier cannot limit his liability for negligence, but 
 on the other hand he may base his charges upon the risk as- 
 sumed, in other words, upon the value of the property trans- 
 ported. It follows from this that leaving out the case of his 
 own negligence, he may by contract with the shipper limit the 
 amount to be recovered by the latter in case of loss to an agreed 
 value. This does not liquidate the damages in advance, but 
 fixes a limit, if the contract is not void for unreasonableness or 
 against public policy, beyond which damages cannot be assessed. 
 
 Illustration. 
 
 The contract of carriage values horses at not more than $200 
 apiece. In a suit for damages, plaintiff offers to show damages 
 based on actual value of horses killed or injured of $25,000. The 
 testimony is inadmissible.' 
 
 Such agreements, if fairly made, do not exempt the carrier 
 from any liability for neghgence, but merely value the risk in 
 return for a proportionate reduction of rate. It is an applica- 
 tion to damages of the ordinary rule that a carrier's liability 
 in general may be limited by express agreement.^ 
 
 Carriage of Passengers. — The contract or duty to carry 
 passengers is of an entirely different description. The injury 
 falls directly upon the person, and the consequences of this are 
 in most cases not distinguishable from those of a tort. On the 
 other hand, as there is in every case a contract to carry, conse- 
 quential damages, as for injury to business, etc., may be recov- 
 ered under the rule in Hadley v. Baxendale, and notice will 
 therefore often affect the meagre of the recovery. Owing to 
 the fact that negligence may be the foundation of the action, and 
 that this negligence may be treated as neglect to perform the 
 
 ' Hart V. Penn. R. R. Co., 112 U. S. 331; ace. Ullman v. Chicago & 
 N. W. Ry. Co., 112 Wis. 150; 66 L. R. A. 246. 
 
 ' Hears v. N. Y., N. H. & H. R. R.j Co., 75 Conn. 171; 56 L. R. A. 884. 
 
312 ELEMENTS OF THE LAW OP DAMAGES. 
 
 duties of the contract, or as neglect to perform the duties imposed 
 upon any one in the position of carrier, it is often impossible to 
 say whether the action is one of tort or contract. The result is 
 that to lay down any rule which will be of much use as a guide, 
 is extremely difficult. It should be noticed that a carrier of 
 ^passengers is not an insurer. His duty is to carry safely all 
 persons who apply for passage.^ The difficulties which surround 
 the subject, and the way in which the courts meet them, can 
 best be seen by a few illustrations. The principal question in.^ 
 volved in the cases will generally be found to be, not the measure 
 of damages, which is always the benefit of the contract to carry 
 safely, or the proximate consequences of the breach of duty 
 considered as a tort, but that of proximate cause. For instance, 
 in a leading English case,^ the plaintiff, his wife, and two children 
 are set down at the wrong station ; they cannot get a conveyance 
 and are obliged to walk; the wife catches cold, and is laid up 
 for some time. It is held that there can be no recovery for the 
 expenses of the illness ; because it was not within the contempla- 
 tion of the parties, nor a probable consequence of having to walk 
 home. Now the question whether the illness is the natural result 
 of the exposure is obviously a question of proximate cause, just 
 as much so as if the action had been one for personal injury. 
 Upon the whole there seems no reason why, in this very peculiar 
 class of contracts, the agreement should not be regarded as 
 including an undertaking to carry so that there shall be no per- 
 sonal injury (this is what carrying safely means); and in that 
 case the question will simply be whether the illness, expenses of 
 cure, etc., were caused by the breach of contract, or tort. This 
 question should be for the jury. It has been seen ' that in Hobbs 
 V. London & S. W. Ry. Co., the right to recover for the exposure 
 was treated as a question for the court, because the action was 
 treated as an action of contract; but where the contract is of 
 
 ' Phila. & Reading R. R. Co. v. Derby, 14 How. 468; Pearson v. Duane, 
 4 Wall. 605. 
 
 ' Hobbs V. London & S. W. Ry. Co., L. R. 10 Q. B. 111. Great doubt 
 is thrown on this decision by the opinions of Bramwell and Brett, L. J., 
 in McMahon v. Field, 7 Q. B. D. 591. 
 
 ' Ante, Chap. V. 
 
CARRIERS. 313 
 
 such a nature that the effect of the breach of it is similar to that 
 of a tort, the reason for the rule ceases. 
 
 The cause of action is neglect to transport the passenger 
 across the Isthmus of Panama, according to contract. The trial 
 judge leaves it to the jury to determine whether a subsequent 
 illness of the plaintiff's is due to the defendant's neglect. This is 
 held to be the proper course ; and the jury having found in the 
 plaintiff's favor on this point, he may recover the expense of such 
 illness.' The plaintiffs are left at night in a place where no 
 houses are to be seen, and at a distance from their destination. 
 They walk to their destination, and the jury find this to have been 
 a reasonable act. The exposure results in a miscarriage, which 
 the jury find to have been due to the condition of the female plain- 
 tiff's health. Recovery may be had for the expenses of the conse- 
 quent illness.^ As the primary consequence of the mere failure 
 to transport, or delay in transportation, or transportation to the 
 wrong place, is inconvenience, the natural act of the passenger 
 is to reduce this to a minimum by taking another conveyance to 
 his destination ; and, as in the case of goods, the added expense 
 will usually be his measure of damages. But of course the 
 expense to which he goes must be reasonable. A good test is, — 
 would the passenger have taken the conveyance and incurred the 
 expense, whatever it may be, if his situation was due to mere 
 accident, or his own fault, and he had no one to look to for 
 compensation ? ' 
 
 In these cases an inquiry usually particularly pertinent is 
 whether the damage is really caused by the failure to transport, 
 or by something else. A case in the Supreme Court of the United 
 States illustrates this. The action is brought to recover damages 
 for failure to transport the plaintiff from Acapulco to San 
 Francisco. The evidence is that the plaintiff had been banished 
 from San Francisco by a Vigilance Committee, an organization 
 having complete control of the city, under penalty of death in 
 case of return. On discovering the facts, the master, from motives 
 of humanity, puts him on board a ship which takes him to New 
 
 » WilHams v. Vanderbilt, 28 N. Y. 217. 
 
 2 Brown v. Chicago, M. & S. P. Ry. Co., 54 Wis. 342. 
 
 ' Le Blanche v. London & N. W. Ry. Co., 1 C. P. D. 286. 
 
314 ELEMENTS OF THE LAW OF DAMAGES. 
 
 York, where he remains for four years. The Vigilance Com- 
 mittee having ceased to exist, he then returns to California, where 
 he brings suit, claiming damages on the ground that all efforts to 
 get back were unavailing, and recovers a verdict for four thou- 
 sand dollars. The court reduces the verdict to fifty dollars. The 
 reason he could not get back to California was that no ship would 
 take him ; and had it been otherwise, his return under the cir- 
 cumstances would not have been the act of a prudent man.* 
 This case was one of a libel in admiralty, but common-law 
 principles of damages fully apply. In Brown v. Memphis & 
 C. R. R. Co..,^ it is suggested that the damages allowed by the 
 Supreme Court in this case were punitive, and not compensatory. 
 It is true that exemplary damages may be given in admiralty,' 
 but in Pearson v. Duane there seems to have been no ground for 
 exemplary damages. What the plaintiff lost was the difference in 
 expense to him of being in Acapulco and New York. The 
 expense of getting back to Acapulco was the full extent of his 
 damages, and this would have been represented by about the 
 sum allowed. No money had been paid as fare. 
 
 Passenger's Baggage. — The responsibility of the carrier for 
 passenger's baggage is limited. For clothing and other articles 
 usually needed intrusted to the carrier's cugtody, including a 
 reasonable sum of money for the journey,* he may be held ; but 
 not beyond this. Thus, in Alabama, it has been decided that he 
 cannot recover for a pistol.® 
 
 ' Pearson v. Duane, 4 Wall. 605. 
 
 " 7 Fed. R. 51, 64. 
 
 ' Per Story, J., in Boston Mfg. Co. v. Fiske, 2 Mason, 119. 
 
 * Illinois C. R. R. Co. v. Handy, 63 Miss. 609; Carpenter v. N. Y., 
 N. H. & H. R. R. Co., 124 N. Y. 53. 
 
 « Cooney v. Pullman Palace Car Co., 121 Ala. 368; 53 L. R. A. 690. 
 Cf. as to a diamond ring, Pullman Palace Car Co. v, Adams, 120 Ala. 581; 
 45 L. R. A. 767. 
 
CHAPTER XXI. 
 
 TELEGRAPH AND TELEPHONE. 
 
 The liabiKty for non-delivery or mis-delivery of telegraphic 
 despatches has been sometimes discussed as if it resembled that 
 of carriers; but the points of resemblance are not many. It is 
 settled that telegraph companies are not in law common carriers/ 
 and a telegraphic contract relates to the carriage neither of goods 
 nor persons. The contract is that intelligence or information of 
 some kind shall be conveyed by means of an electric current to 
 some one at a distance. Negligence or breach of contract must 
 be the foundation of the action ; and as to this, there seems to be 
 a difference between the view taken by the English and the 
 American courts, the former holding that while the sender may 
 have an action of contract, the person for whom the message is 
 intended has no right of action at all ; ^ the latter, that the person/ 
 to whom the message is addressed has an, interest suflScient to' 
 support an action.' The action, according to the circumstances, 
 may be in contract or in tort, — may combine the features of 
 both, or may not make it clear which ground of liability is to be 
 regarded as the basis of the claim ; the damages allowed depend 
 upon the view taken of the nature of the injury, which may be of 
 any description, pecuniary or personal. While the form of the 
 action may. be, and often is, regarded as unimportant, the guiding 
 principles of proof and assessment of damages are always in 
 force. In the case of commerical despatches we do not find 
 damages for mental distress; the value of the use of money still 
 
 ' Kiley v. W. U. Tel. Co., 109 N. Y. 231; Grinnell v. W. U. Tel. Co., 
 113 Mass. 299. 
 
 ' Playford v. United Kingdom E. T. db., L. R. 4 Q. B. 706; Dickson 
 V. Renter's T. Co., 2 C. P. D. 62; 3 id. 1. 
 
 ' For a full collection of authorities, see 25 Am. & Eng. Encycl. of Law, 
 825-828; Ferrero v. W. U. Tel. Co., 9 App. D. C. 455; 35 L. R. A. 548. 
 
316 ELEMENTS OF THE LAW OF DAMAGES. 
 
 continues to be interest; cases of messages affecting the person 
 or domestic relations are treated in a wholly different manner 
 from those affecting pecuniary interests. 
 
 The liability of telegraph companies and the principles which 
 govern the assessment of damages for non-delivery or delay, 
 have been stated by the Supreme Court of the United States 
 upon a full review of the authorities. Such companies exer- 
 cise a public employment, and are bound to serve all alike. 
 They are not, however, common carriers, nor even bailees. The 
 message is in itself of no value, and the measure of damages has 
 no relation to any value of the naessage, except so far as the value 
 may be disclosed by the despatch itself, or be agreed between 
 the sender and the company. The company may restrict its 
 liability by reasonable regulations, and it is a reasonable regula-_ 
 tion to require the repetition of the message from the place of 
 destination if the sender wishes to insure accuracy; and to pro- 
 vide that for mistakes in unrepeated messages the company will 
 not be liable beyond the cost of transmission. To fix the company 
 with liability for substantial damages in contract, the rule in 
 Hadley v. Baxendale must be applied, and consequently for 
 loss, in the case of unintelligible despatches, or messages in 
 cipher, there is no liability.' Such is the general result of the 
 authorities. When it is said that the message itself has no value, 
 it is not meant that correct delivery of the message has none; but 
 as to this, owing to the nature of the contract, it is impossible to 
 say that there is any general standard by which the value can 
 be measured. Despatches divide themselves broadly into two 
 classes, — commercial or business messages, where the interests 
 affected relate to money or money's worth ; and non-commercial 
 messages, where the interests affected may be of any other kind. 
 Commercial messages come within the operation of the rule of 
 Hadley v. Baxendale as far as they convey to the telegraph com- 
 pany a more or less intelligible idea of the object intended to be 
 affected by the result. 
 
 Perhaps, owing to the difference in the nature of the business, 
 
 ' Primrose v. Western U. T. Co., 154 U. S. 1; Fergusson v. Anglo-Am. 
 Tel. Co., 178 Pa. 377; 35 L. R. A. 554. 
 
TELEGRAPH AND TELEPHONE. 317 
 
 courts seem to find the diificulty in the way of holding telegraph 
 companies liable for consequential damages, under the rule of 
 the contemplation of the parties, less than in the case of carriers. 
 The telegraph company conveys intelligence, and always has 
 (except in the case of unintelligible or cipher despatches) some 
 notice of the object of the correspondence ; the mind of the oper- 
 ator must nfecessarily be directed to the meaning of the despatch 
 in order to transmit it properly. The carrier's business, on the 
 other hand, is simply to carry, and except so far as there may be 
 a voluntary disclosure, or, so far as he may, to protect himself, 
 require the shipper to disclose, he does not even know the nature 
 of the thing carried, far less the object in view. Consequently 
 the proof of contemplation by both parties is more easy in the 
 one case than in the other. Without very careful comparison 
 of all the circumstances, it will not do to assume that a decision 
 in a case against a telegraph company as to the contemplation 
 of the parties will have any force or application in a case against 
 a carrier. 
 
 With regard to the question of proximate cause great difficulties 
 are presented because the question so often arises whether, had 
 the message been received, it would have been acted upon, and 
 whether the real cause of the loss is not the independent act of 
 one of the parties. 
 
 In many cases the question of the allowance of damages for 
 mental suffering is involved, e. g., despatches relating to family 
 events affecting the feelings, such as births, deaths, or funerals, 
 or despatches summoning physicians to the bedside of near 
 relatives. It is generally held absolutely that mental suffering 
 cannot constitute a cause of action of tort, based on negligence, 
 and a court holding this should certainly not allow it in con- 
 tract. In most cases the proof is illusory, and the damages spec- 
 ulative. Here and there telegraph cases occur, however, which 
 may be said to import mental suffering and outraged feelings, 
 and in some jurisdictions a recovery is allowed. These are, 
 however, cases in which the doctrine of exemplary damages 
 seems to be better adapted to overcome the difficulty than an at- 
 tempt at the appraisal and pecuniary compensation of wounded 
 sentiment. Exemplary damages avoids the difficulty about 
 
318 ELEMENTS OF THE LAW OP DAMAGES. 
 
 proof, for res ipsa loquitur — the jury readily perceives the out- 
 rage, if there is one. 
 
 For failure to convey intelligence there cannot in the nature of 
 things be any normal rule of damages ; no idea of the nature and 
 extent of the injury is logically imported until we know what was 
 the intelligence to be conveyed. 
 
 Telephone messages resemble in some respects those sent by 
 telegraph. The company undertakes to furnish a means of 
 communication by electricity, though it does not itself actually 
 transmit the message. If for any reason it fails to supply the 
 service contracted for, it commits a breach of contract and is 
 responsible for the consequences. The principles which govern 
 the Umits of this responsibility are, of course, affected by the fact 
 that as a general rule the company has no knowledge of the na- 
 ture of the communications which its breach of contract inter- 
 feres with. 
 
 Illustrations. 
 
 (a) A message directed to E. is delivered by M. at the telegraph 
 station of the defendant in the name of, and purporting to be from, 
 the cashier of a bank. It conveys the information that the bank 
 will pay checks of M. to the amount of 120,000. M. is known to 
 the operators who transmit the message, and known by them to 
 have written it; the transaction as a whole is such that it is gross 
 negligence to forward it. Relying on the despatch, E. cashes M.'s 
 check for $10,000, and gives him credit for 110,000. The whole 
 transaction being a fraud, the company is Uable for the amount of 
 the loss.* 
 
 (b) A despatch is left by B. with a telegraph company to be sent 
 to Chicago, directing the purchase of 10,000 bushels of corn As 
 transmitted it directs the purchase of 1,000 bushels. The mistake 
 being discovered, the balance of 9,000 bushels is purchased by B., 
 but at ten cents more per bushel than he could have bought for, at 
 the time of the deUvery of the orginal despatch. The measure of 
 damages is $900 with interest.^ 
 
 (c) A message orders the purchase of stock, which advances 
 between the time the message should have arrived and the time of 
 
 ' Elwood V. W. U. Tel. Co., 45 N. Y. 549. 
 = Bartlett v. W. U. Tel. Co., 62 Me. 209. 
 
TELEGRAPH AND TELEPHONE. 319 
 
 purchase under another order; the advance is the measure of 
 damages.* 
 
 (d) The cause of action is the failure to notify the sender that 
 the message cannot be transmitted within a reasonable time. The 
 measure of damages is the difference between what the stock could 
 have been purchased for and what was paid under the belief that 
 the message had been transmitted without delay. ^ 
 
 (e) A message directs an agent to stop buying hogs, but owing 
 to delay in deUvery a purchase is made. The measure of damages 
 is the difference between the price paid and the market value on the 
 day following, when the agent was instructed to purchase again.^ 
 
 (J) Dealers in pork at Boston receive a letter from dealers at 
 Buffalo, offering to sell a lot of hogs; after correspondence they 
 send a despatch, "Will take your hogs at your offer." Delivery 
 is unreasonably delayed, and the Buffalo dealers sell the hogs to 
 another person. The measure of damages is the difference between 
 the agreed price and the sum which the Boston dealers would have 
 been compelled to pay at the place fixed for deUvery, to replace 
 themselves.' 
 
 (g) Owing to defendant's negligence plaintiff loses a sale. The 
 measure of damages is the difference between the price offered and 
 the market value of the article at the time and place of delivery. 
 The fact that the plaintiff sold the article subsequently at a higher 
 price is immaterial.^ 
 
 (h) The despatch reads, "Send bay horse to-day. Mock loads 
 to-night." Mock is a well-known buyer, in the habit of shipping 
 horses from the vicinity, presumably known as such to the de- 
 fendant's agent. The owner can recover for the loss of the sale." 
 
 (i) L. & D., manufacturers of salt at Syracuse, have an agent 
 at Chicago, and another at Oswego, which is their shipping port. 
 The agent at Chicago telegraphs to the agent at Oswego, "Send 
 5,000 sacks of salt immediately." Through the negligence of the 
 
 ' United States T. Co. v. Wenger, 55 Pa. St. 262. 
 
 = Swan V. Western Tel. Co., 129 Fed. 318; 67 L. R. A. 153. 
 
 ' W. U. Tel. Co. V. North P. & P. Co., 188 111. 366; 52 L. R. A. 274. 
 
 * Squire v. W. U. Tel. Co., 98 Mass. 232; ace. True v. International T. 
 Co., 60 Me. 9. 
 
 » W. U. Tel. Co. V. Nye & Schneider Co., 70 Neb. 251; 63 L. R. A. 803. 
 Had the market declined tlie defendant's liability would not have been 
 increased. Ibid. 
 
 ' Thompson v. W. U. Tel. Co., 64 Wis. 531. 
 
320 ELEMENTS OP THE LAW OF DAMAGES. 
 
 company the message as delivered reads "casks" instead of "sacks." 
 The despatch as sent would have meant sacks of fine salt, at four- 
 teen pounds each; as altered it means coarse salt, in casks of 320 
 pounds each. Five thousand casks of coarse salt are sent; on 
 arrival at Chicago, there being no market for it, it is sold for less 
 than the market value at Oswego. In an action against the com- 
 pany the shippers can recover the difference, together with the ex- 
 pense of transportation to Chicago.' 
 
 (j) The message, read' in the light of well-known usage in com- 
 mercial correspondence, and in view of other circumstances within 
 the knowledge of both parties, reasonably informs the operator 
 that it relates to a business transaction, disclosing its nature so far 
 as necessary to accomplish the purpose for which it is sent; it does 
 not disclose the precise terms nor inform the operator as to the 
 amount of damage likely to result. The plaintiff may recover con- 
 sequential damages.^ 
 
 (k) A merchant desiring to sell potatoes sends plaintiff a message, 
 "55 cents usual terms quick acceptance." As delivered the mes- 
 sage reads "45." The measure of damages includes profit lost on 
 a re-sale, but the plaintiff having refused to receive the potatoes at 
 55 cents, under the rule of avoidable consequences, cuts down his 
 own damages to the difference between 45 and 55, or 10 cents a 
 bushel. Had he accepted the potatoes, he would have been able 
 to deUver under his contract of re-sale and have held the company 
 for the difference as consequential damages.' 
 
 (l) C. sends a despatch directing his agent to ship a horse to V. 
 As transmitted the despatch is an order to ship the horse to N.; 
 
 • Leonard v. New York, A. & B. E. M. T. Co., 41 N. Y. 544. The rule 
 of damages is said by the Court of Appeals to have been "siiflSciently fa- 
 vorable to the defendants," p. 567. Of course, in such a case the verdict 
 stands. It was argued that the plaintiffs should have sent the salt back 
 to Chicago; but there was nothing in the case to show that this would 
 have been a prudent course. The damages allowed are treated in the 
 opinion of Eabl, C. J., as coming imder the rule of the contemplation 
 of the parties; there was, however, no proof that the company knew that 
 the salt was shipped for sale, but this is not necessary to the decision. 
 The company's negligence was the efficient cause which led to the salt 
 being in Chicago instead of Oswego. But for this negligence the salt would 
 have still been in Oswego. The company must, therefore, be liable for the 
 consequent damage, which is the rule adopted by the court. 
 
 ' Postal Tel. Cable Co. v. Lathrop, 131 111. 575. 
 
 ' Ferrero v. W. U. Tel. Co., 9 App. D. C. 455; 35 L. R. A. 548. 
 
TELEGRAPH AND TELEPHONE. 321 
 
 this is done, and as the agent goes away, C. cannot for some time 
 ascertain what has become of the horse. He may recover substan- 
 tial damages.' 
 
 (m) A despatch contains information of the arrival of a barge 
 for the purpose of shipping staves. It is not delivered for thirty 
 hours, so that plaintiff cannot use it to get the staves, and they are 
 swept away by an extraordinary flood. The measure of damages 
 is the loss of the use of the barge for the period of delay; not the 
 value of the staves, the proximate cause of the loss of these having 
 been the high water.* 
 
 (n) The defendant fails to deliver a despatch advising plaintiff 
 of the whereabouts of a fugitive from justice, although chargeable 
 with knowledge that it might relate to a reward offered for the 
 fugitive's apprehension and that plaintiff was expecting such a 
 telegram. Damages may be recovered for loss of the reward.' 
 
 (o) A message directs the person to whom it is addressed to make 
 a purchase of oil if he thinks it safe ; it is found as a fact that if the 
 despatch had been received in time, he would have purchased at 
 SI. 17 per barrel. The next day the price rises to $1.35, and no 
 purchase is ever made. There is no proof that had the oil been pur- 
 chased it would have been re-sold. The plaintiff can only recover 
 the cost of sending the despatch.^ 
 
 (p) B. sends a message to his agent at R. requesting him to tele- 
 graph back information as to the condition of an oil well at R. 
 belonging to B. ; owing to defendant's fault the message does not 
 reach the agent for some days, and B. sells the property for less 
 than, in view of the actual facts as to its condition, it was worth. 
 The defendant had no notice or knowledge of B.'s object in sending 
 the despatch. The only loss for which he can recover is the money 
 paid for its transmission.' 
 
 (q) The action is by the sender against the telegraph company to 
 recover damages for a mistake in the transmission of a despatch, 
 which was in cipher, unintelligible except to the sender and his 
 
 ' W. U. Tel. Co. V. CraU, 38 Kan. 679; 5 Am. St. Rep. 795. 
 
 " Bodkiii V. W. U. Tel. Co., 31 Fed. R. 134. 
 
 ' McPeek v. W. U. Tel. Co., 107 la. 356; 43 L. R. A. 214. 
 
 • W. TJ. Tel. Co. V. Hall, 124 U. S. 444. There is no proof of loss. 
 He would have had the oil, but he would have paid its exact market value. 
 The only way of making out a loss is to assimie that he would have sold 
 the next day, which is mere conjecture. 
 
 ' Baldwin v. United States ,T. Co., 45 N. Y. 744. 
 
 21 
 
322 ELEMENTS OF THE LAW OP DAMAGES. 
 
 agent. No more can be recovered than the sum paid for sending 
 the message.' 
 
 (r) A telegraph company delays the delivery of a message ask- 
 ing a physician, known by its agent to be such, to come at once. 
 By the delay only, there being no intervening cause, a confinement 
 case is aggravated and results in the death of the child. The 
 mother may recover substantial damages including damages for 
 pain suffered.^ 
 
 (s) A message is sent to R. informing him of the death of his 
 brother, and the time and place of burial, but through negligence 
 it is not delivered. Had he received it, he v^ould have been present 
 at the funeral. The damages claimed are for disappointment and 
 mental suffering through having been prevented. The court in- 
 structs the jury that such damages may be recovered,, and a verdict- 
 is rendered for $800. The verdict cannot be sustained.^ 
 
 (f) Messages are sent to a woman, announcing the illness and 
 death of her brother. The damages claimed are for being pre- 
 vented from caring for her brother, and making preparations for 
 his funeral. A demurrer cannot be sustained; the plaintiff has a 
 right of action for nominal damages, and she may also recover for 
 mental suffering.* 
 
 (m) H. telegraphs his physician, at a distance of five miles by 
 rail, "Come first train to see my wife, very low." The message 
 is not delivered till the next day, when the physician at once goes 
 to H.'s house; six hours later H.'s wife dies. The physician tes- 
 tifies that had he received the despatch the day before he would 
 have gone at once, but is not certain that he would have been able 
 
 ' Primrose v. W. U. Tel. Co., 154 U. S. 1. 
 
 ' W. U. Tel. Co. V. Church, 57 L. R. A. 905. This case is reported as 
 one of contract, but the rule of damages applied is that of tort. 
 
 » W. U. Tel. Co. V. Rogers, 68 Miss. 748; ace. Peay«. W. U. Tel. Co., 
 64 Ark. 538; 39 L. R. A. 463; Chapman v. W. U. Tel. Co., 88 Ga. 763; 
 W. U. Tel. Co. V. Ferguson, 157 Ind. 37; 54 L. R. A. 846. 
 
 * Wadsworth v. W. U. Tel. Co., 86 Tenn. 695. Provided, of course, 
 that there are not circumstances showing that she did not suffer. Near 
 relatives may be on such terms as to preclude the possibility of such 
 proof. In North Carolina a young girl has been allowed damages for mental 
 suffering caused by having to drive late at night in a strange hack, the 
 negligence of the company having caused the failure to meet her on arrival 
 in a strange city. Green v. W. U. Tel. Co., 136 N. C. 489; 67 L. R. A. 
 985. 
 
TELEGRAPH AND TELEPHONE. 323 
 
 to save his patient's life. On suit by H. damages may be recovered 
 for mental suffering.' 
 
 (v) Action by widow for negligence resulting in non-delivery 
 of telegram sent by her announcing death of husband and giving 
 notice when to expect her to arrive with the remains. Damages 
 for mental suffering may be recovered in tort.^ 
 
 (w) A telephone company wrongfully discontinues its service. 
 In the absence of any proof of specific loss the measure of damages 
 is the amount paid for the service during the period of discontinu- 
 ance. Damages for annoyance cannot be recovered.^ 
 
 In this class of cases it is necessary to distinguish carefully 
 between the wrong which gives rise to a cause of action, and 
 effects which may produce sympathetic mental distress in the 
 by-standers. 
 
 Illustration. 
 
 Physicians called in to attend a sick child telegraph to another 
 physician to bring instruments immediately "to Jobe Reid's." 
 The message also explains the nature of the attack. Owing tO' 
 negligent delay in deUvery, the child dies. The child's father, 
 Jobe Reid, cannot maintain an action for mental suffering. The- 
 cause of action would have been in the child, and cannot be split; 
 up among his relatives about his bedside.* 
 
 In some jurisdictions telegraph companies are held liable for 
 negligence even in the face of the stipulation that the company 
 shall not be liable beyond the cost of transmission for mistakes^ 
 in the transmission of unrepeated telegrams. In such a state of 
 the law the liability is more extensive, though questions relating 
 to the measure of damages are unaffected by the fact. 
 
 Illustration. 
 
 Through a mistake in figures made in transmission, the receiver 
 of a telegram is led to suppose that a lot can be sold for no more 
 
 ' W. U. Tel. Co. V. Henderson, 89 Ala. 510; in such a case mental 
 suffering would seem to be imported. 
 
 ' Cowan V. W. U. Tel. Co., 122 la. 379; 64 L. R. A. 645. 
 
 ' Cumberiand T. &T. Co. v. Hendon, 114 Ky. 501; 60 L. R. A. 849i 
 
 * W. U. Tel. Co. V. Reid. 12Q-Ky..231; 70 L. R. A. 289i, 
 
324 ELEMENTS OF THE LAW OF DAMAGES. 
 
 than $1,300 although the market value is $1,900, and in consequence 
 of the mistake authorizes the sale. The company is liable for the 
 difference between the market value and the price obtained.' 
 
 In the decision cited, there seems to be a confusion between 
 the ordinary liability for negligence and a totally different ques- 
 tion, — the reasonableness of the stipulation.^ If the stipulation 
 is held reasonable, its provisions should govern ; if held unrea- 
 sonable, the ordinary rules as to negligence determine the result. 
 Some cases complicate the matter by holding that while the 
 stipulation is reasonable, it does not cover gross negligence, but 
 as already explained ^ in ascertaining whether the defendant is 
 liable, there is no question of degrees of negligence. 
 
 > Reed v. W. U. Tel. Co., 135 Mo. 661; 34 L. R. A. 492; ace. Brown v. 
 Postal Tel. Co., Ill N. C. 187; 17 L. R. A. 648. 
 
 ^ Cf. Primrose v. W. U. Tel. Co., 154 U. S. 1; W. U. Tel. Co. v. Eubanks, 
 100 Ky. 591; 36 L. R. A. 711. 
 
 ' Ante, Chap. VII. 
 
CHAPTER XXII. 
 
 BREACH OF PROMISE. 
 
 The rules governing in actions for breach of promise of mar- 
 riage illustrate many points with regard to the law of damages. 
 The action is in form one of contract, but the injury falls partly 
 on person and partly on property, while the direct and natural 
 consequence of the breach is the very species of injury which the 
 law in ordinary actions of contract refuses to redress, — mental 
 suffering, injury to feehngs and affections, and wounded pride. 
 Substance has here, as elsewhere, prevailed over form, and the 
 result is that the action more resembles an action of tort than 
 one of contract. 
 
 The action is peculiar in another respect. It might be sup- 
 posed that since what the plaintiff has lost is a marriage, and 
 since she is entitled to pecuniary compensation for this, what she 
 would recover would be the difference between her position as a 
 single woman, and the sum of the benefits she would have 
 received from the marriage. But no such rule can be applied, 
 because there is no saying with certainty what would have been 
 the benefits of a particular marriage. The whole matter is con- 
 jecture.' The jury are allowed to hear evidence as to the cir- 
 cumstances of the defendant, and to consider them in giving a 
 
 ' It may be worth suggesting that this lack of certainty as to proof 
 may have been one reason why the common law allowed no action for the 
 death of a human being. The benefit to be derived by a family from the 
 continuation of the life of a member is as problematical as the possible 
 benefit to be derived from a marriage. We are so accustomed to the 
 statutory action for death, with its rule as to "probable benefit,'' that we 
 are apt to forget the inherent difficulties which beset estimates of this de- 
 scription. It should not be overlooked that, owing to the fact of the 
 existence of the jury, many things are rigidly excluded in a common-law 
 court which might under a different system be admitted. 
 
326 ELEMENTS OF THE LAW OF DAMAGES. 
 
 verdict; but this does not mean that the plaintiff recovers the 
 value of the lost marriage, as in the case of an ordinary 
 commercial contract. 
 
 In an English case in the Court of Appeal, the nature of the 
 action for breach of promise has been carefully considered. The 
 question was whether such an action, where no special damage 
 is alleged, survives against the personal representatives of the 
 promisor. It was held that it does not; that the special damage 
 which would cause it to survive must be damage to the property 
 and not to the person of the promisee, and must be within the 
 contemplation of both parties at the date of the promise, and 
 that the action can be brought against the executors for such 
 special damage only, and not for general damages.' The theory 
 upon which the decision is based is made entirely plain in the 
 opinions of Lord Esher, M. R., and Bowen, L. J. It is that, 
 though formally an action of contract, the action for breach of 
 promise of marriage is founded upon an injury resembling de- 
 ceit or fraud, as in tort ; that the claim for the loss of the marriage 
 is merely secondary; in other words, that the substantive cause of 
 action is purely for elements of injury affecting the person, and 
 that when the pecuniary circumstances of the defendant are gone 
 into, this is merely one of the collateral circumstances of aggra- 
 vation. This makes the action on one side one for deceit or fraud, 
 on the other, of contract, and explains what is said about special 
 damages. It is not particular injury which is meant, but special 
 or consequential damages, under the rule in- Hadley v. Baxen- 
 dale. Although the cause of action considered as a personal 
 wrong does not survive, there is a promise, and if the plaintiff can 
 show that the breach of this promise produced "a temporal (i. e., 
 pecuniary) loss flowing directly from the breach or within the 
 contemplation of both parties," a recovery may be had against 
 the executor of the promisor. 
 
 The case does not make it clear what such special damages 
 must be. Bowen, L. J., says that neither the expense of main- 
 taining herself as a feme sole after the breach, nor money spent 
 for a trousseau by the plaintiff, is enough ; but he expressly says 
 
 > Finlay v. Chimey, 20 Q. B. D. 494. 
 
BBEACH OF PROMISE. 327 
 
 that it is not to be understood that there may not be a claim for a 
 trousseau which would be held good. Perhaps if a date were fixed 
 for the marriage, and the plaintiff purchased her trousseau on the 
 strength of it, this might be held a ground of recovery against 
 the executor. The American decisions support the view taken by 
 the English court,^ and the result arrived at seems, from a tech- 
 nical point of view, quite as anomalous as everything else con- 
 nected with this action. An action formally in contract, which 
 does not survive so far as the substantive cause of action is con- 
 cerned, and yet which may survive by means of the formal cause 
 of action for the purpose of securing compensation for a radically 
 different form of injury, is, to say the least, sui generis. There 
 is something of the same sort in seduction, when the formal cause 
 of action is loss of service, and the substantive cause of action the 
 wrong and injury. 
 
 It has been seen that general damages are such as are natu- 
 rally imported by the statement of the cause of action. The law 
 is said to imply them, or presume them to have accrued from the 
 wrong complained of .^ As a rule the law merely follows common 
 experience, and implies such damages as the statement of the 
 cause of action lo^cally imports ; special damages, on the other 
 hand, are such as are asserted to have followed from the cause of 
 action, but are not imported by it. Such damages can never be 
 recovered, unless they are (1) specially set up in the declaration, 
 and (2) proved to be a proximate consequence of the wrong 
 complained of. 
 
 In an action for breach of promise, general damages only are 
 claimed,' but the plaintiff is allowed to prove seduction and the 
 birth of a child. This is a good ground for a new trial. Had 
 she alleged that owing to the condition she was in her mental 
 
 ' Stebbins v. Palmer, 1 Pick. 71; Smith v. Sherman, 4 Cush. 408; 
 Hovey v. Page, 55 Me. 142; Lattimore v. Simmons, 13 S. & R. 183. The 
 local survival statute may of course prevent abatement. Cf. Johnson v. 
 Levy, 118 La. 447; 9 L. R. A. (n. s.) 1020. 
 
 ' 1 Chitty PI. 395. 
 
 ' There was an averment in the declaration of disappointment and 
 mental suffering, but -the court held these to be general damages, implied 
 in every case. 
 
328 ELEMENTS OP THE LAW OP DAMAGES. 
 
 suffering had been aggravated, this would have been a proximate 
 result, and she might have proved it; but it is not necessarily 
 imported in the statement of the cause of action. But proof of the 
 effect upon her bodily health of the seduction would be inad- 
 missible, even if averred.' The reason given is that the plain- 
 tiff was, in part at least, responsible for the seduction, and 
 cannot recover for this wrong, or its consequences. Mutual 
 fault is no doubt the explanation of the common-law rule that no 
 action lies for seduction.^ In some jurisdictions the common- 
 law rule is not recognized, and a woman may maintain an 
 action for her own seduction; but then she must prove that 
 her will was overborne by that of the defendant (e. g., owing to 
 the peculiar relation in which she stood to him, as adopted 
 daughter, etc.), in other words, that she was not a consenting 
 party.' In the action for breach of promise, she may recover for 
 mental suffering which the defendant must have known would be 
 enhanced owing to her condition; but of course the seduction 
 itself is not a consequence of the breach. 
 
 In Missouri it has been held that the action is compensatory 
 only, aggravation being included if proved ; and that exemplary 
 damages cannot be allowed. But this should be the rule only in 
 such jurisdictions as disallow exemplary damages altogether. In 
 others, the aggravation increases the measure of compensation, 
 but this does not preclude additional damages for the sake of 
 example in breach of promise any more than in any other class 
 of cases.^ 
 
 Rules. 
 
 100. In actions for breach of promise of marriage, the amount 
 
 of the verdict is in the discretion of the jury. 
 
 101. All circumstances in aggravation or mitigation are ad- 
 
 missible in evidence. 
 
 102. Exemplary damages may be given. 
 
 103. Verdicts may be set aside as excessive or inadequate. 
 
 • Tyler v. Salley, 82 Me. 128. 
 ' Paul V. Frazier, 3 Mass. 71. 
 
 ' Watson V. Watson, 53 Mich. 168. 
 
 * Trammell v. Vaughn, 158 Mo. 214; 51 L. R. A. 854. 
 
breach of promise. 329 
 
 Illustrations. 
 
 (a) The jury are instructed that they may consider the following 
 elements of damages : (1) Disappointment of plaintiff's reasonable 
 expectations, and the loss caused thereby, and among other things 
 the money value of the marriage. (2) The injury to her affec- 
 tions. (3) Mortification and distress, resulting from defendant's 
 refusal to fulfil his promise, and in connection with the last two 
 elements of injury, the length of time during which the engagement 
 has existed, her wounded spirit, the disgrace and insult to her feel- 
 ings, and probable soUtude which would result from the desertion. 
 The instruction is proper.' 
 
 (b) On the trial the jury is charged that if they find for the 
 plaintiff they "should award her such damages as will place her in 
 as good a condition pecuniarily as she would have been if the con- 
 tract had been fulfilled." The instruction is improper; it is too 
 complicated and conjectural to be of service, and should not have 
 been given.^ ' 
 
 (c) The verdict is for £2,500. The defendant is a man of con- 
 siderable property, the plaintiff, of a respectable family, has been 
 seduced by him under promise of marriage and cast off. The 
 amount is not excessive, it is a matter of discretion with the jury.' 
 
 (ft) The defendant sets up as a reason for the breach that the 
 plaintiff is unchaste. The charge being entirely contradicted by 
 the evidence, this aggravates the injury, and the jury may give 
 exemplary damages.* 
 
 (e) The jury is instructed that an attempt to prove the plaintiff 
 guilty of misconduct with other men of which he knew she was not 
 guilty is matter of aggravation, although not set up in the answer. 
 This is not ground for a new trial.^ 
 
 (J) Proof of seduction or of seduction followed by the birth of a 
 child is admissible in aggravation.' 
 
 > Coolic^e V. Neat, 129 Mass. 146. 
 
 ' Miller v. Rosier, 31 Mich. 475. In Lawrence v. Cooke, 56 Me. 187, such 
 a direction was held proper; but, as explained above, the Michigan decision 
 would seem to be in accordance with principle. 
 
 ' Berry v. Da Costa, L. R. 1 C. P. 331. 
 
 * Southard v. Rexford, 6 Cowen, 254. 
 
 " Kniffen v. McConnell, 30 N. Y. 285, 293. 
 
 " Sherman v. Rawson, 102 Mass. 395; Kelley v. Riley, 106 id. 339; 
 Coil v. Wallace, 24 N. J. L. 291. Contra: Wrynn v. Downey, 27 R. I. 
 454; 4 L. R. A. (N. s.) 615. 
 
330 ELEMENTS OF THE LAW OF DAMAGES. 
 
 (g) The plaintiff may give evidence of the financial resources 
 and social position of the defendant. Both are relevant to the' 
 question — what sort of a home was held out to her as an induce- 
 ment ? ' 
 
 (h) The trial judge is requested but refuses to charge the jury 
 that they should take into consideration the character and habits 
 of the plaintiff, and if they believe, froin the evidence, that she was 
 addicted to lewdness and profanity, or either, they should consider 
 these circumstances in mitigation. The refusal is error for which 
 the judgment must be reversed.^ 
 
 (i) Defendant, denying the promise, testifies that he withdrew 
 because he did not like the plaintiff well enough to marry her, and 
 his counsel argues to the jury that they ought to consider that the 
 plaintiff's loss is less by reason of her having escaped an unhappy 
 marriage. The point is not properly raised by the exceptions; 
 but the court says that if it had been, the matter would not be one 
 of mitigation ; because the defendant might have inflicted a greater 
 injury by keeping his promise, is no reason why the plaintiff should 
 not recover the damage actually sustained.' 
 
 (j) The suit for breach of promise is brought against the woman, 
 and the evidence is that the plaintiff is a man of gross manners, 
 and destitute of feeling; that he has conducted himself with bru- 
 tality and violence, and threatened to treat defendant ill. He asks 
 for damages for the loss of the society of a person whom he never 
 seems to have valued, and the jury should take this into account : 
 his damages for injury to his affections cannot be great.* 
 
 (k) Statements made by plaintiff a few days after the engage- 
 ment was broken, that she cared nothing for defendant; that all 
 
 ' Bennett v. Beam, 42 Mich. 346; Berry v. Da Costa, L. R. 1 C. P. 331. 
 
 2 Burnett V. Simpkins, 24 111. 264. 
 
 ' Piper V. Kingsbury, 48 Vt. 480. Another reason would be that a 
 promise to many usually contemplates love and affection. If the defendant 
 were to notify the plaintiff at the time of the engagement that he did not 
 care for her, it might then, on breach, become a question whether he could 
 be held for a head of damage which both parties did not contemplate. 
 This, however, might not be of much practical importance, as the main 
 heads of damage, the effect upon the plaintiff's mind and affections and 
 the loss of the marriage, might not be diminished. When the want of love 
 and affection is on the plaintiff's side the case is different. See the next 
 two illustrations. 
 
 « Leeds v. Cook, 4 Esp. 256. 
 
BREACH OP PROMISE. 331 
 
 she wanted was his money, and to spite his family; and that she 
 did not mean to Uve with him, are admissible in mitigation. They 
 show a less amount of injury.' 
 
 (Q The defendant may give in evidence, in mitigation of damages, 
 the fact that he refuses to go on with the marriage because of the 
 settled opposition of his mother, who is in infirm health.^ 
 
 • Miller v. Rosier, 31 Mich. 475. 
 » Johnson v. Jenkins, 24 N. Y. 252. 
 
CHAPTER XXIII. 
 
 CONTRACTS AFFECTING REAL ESTATE. 
 
 With reference to covenants or agreements affecting real 
 estate an important distinction must be noticed. As a general 
 rule there is no difference between the principles governing 
 damages in contracts affecting real estate and any others. The 
 rules of avoidable consequences, of Hadley v. Baxendale, that 
 the compensation must equal the injury, apply as much to real 
 estate as to anything else. 
 
 With regard to covenants in leases, for instance, little need be 
 said except that they are treated as ordinary commercial con- 
 tracts, and the plaintiff recovers his actual loss, which varies 
 with the precise terms of the covenant and the circumstances 
 of the case. The covenant is to give possession, and the 
 tenant fails to obtain it ; his measure of damages is evidently 
 the value of the lease that he was to have had. In other words, 
 for failure to give a tenant possession, his measure of damages 
 against his landlord is the difference between the rent reserved 
 and the value of the premises during the term.' This is only 
 an instance of the apphcation of the rule that for breach of 
 contract the measure of damages is the net value of the con- 
 tract. But, owing to the peculiar nature of the contract, it 
 continually happens that other damages are claimed. The 
 tenant may have been compelled to obtain lodgings elsewhere; 
 for this expense he may recover.^ Still, the. normal rule of 
 damages always remains the same. 
 
 ' Trull V. Granger, 8 N. Y. 115; Jonas v. Noel, 98 Tenn. 440; 36 L. R. A. 
 862. 
 
 ' C'f. Yeager v. Weaver, 64 Pa. St. 425, Eddy v. Coffin, 149 Mass. 463, 
 and Locke v. Furze, 19 C. B. (n. s.) 96, 118. 
 
contracts affecting real estate. 333 
 
 Rule. 
 
 104. For failure to give possession by landlord, the measure of 
 damages is the difference between the rent reserved and 
 the value of the premises for the term. 
 
 On breach of a covenant to repair, the tenant will always re- 
 cover his actual loss, but it can hardly be said that there is an 
 abstract rule for determining it. Usually he may make the re- 
 pairs himself and recover the expense. Or, the want of repairs 
 may make the premises uninhabitable; then he would recover 
 the rental value during the period of the breach.' Where the 
 action is against the tenant, the measure of damages varies in 
 the same way with the circumstances. He vacates the premises 
 at the end of the term, leaving them out of repair ; the measure 
 of damages is the cost of the repairs.^ On the other hand, if 
 the term still continues and the landlord cannot repair, the 
 measure of damages may be the diminution in the value of the 
 reversion.' 
 
 The rule that the landlord's measure of damages is the cost of 
 putting the premises in the state of repair required by the cove- 
 nant is not affected by the fact that by virtue of a new lease to a 
 new tenant, beginning at the expiration of the first lease, the 
 lessor is no worse off than if defendant's covenant had been per- 
 formed. The new lease only gives an interesse termini, and 
 is res inter alios acta. The lessor has a right of entry on the 
 determination of the lease, and his right of action for damages 
 vests before any estate vests in the subsequent lessee. The lessor 
 does not sue as reversioner, but on the breach of the covenant.^ 
 
 It is needless to multiply illustrations of this sort. What has 
 been said about leases may be said of the whole array of con- 
 
 • Hexter v. Knox, 63 N. Y. 561. 
 
 = Clow V. Brogden, 2 M. & G. 39; Watriss v. Cambridge Nat. Bank, 130 
 Mass. 343. 
 
 ' Smith V. Peat, 9 Ex. 161 ; Mills v. East London Union, L. R. 8 C. P. 
 79; Middlekauff v. Smith, 1 Md. 329. 
 
 * Joyner v. Weeks, [1891] 2 Q. B. 31 ; Appleton v. Marx, 117 App. Div. 
 206, 211. Cf. Lewis v. Baker, [1905] 1 Ch. 46. 
 
334 ELEMENTS OF THE LAW OF DAMAGES. 
 
 tracts relating to real estate. In every case the precise nature of 
 the interest affected (whether a term of years, a reversion, a life 
 estate, a remainder, etc.), the character of the contract and the 
 extent and elements of the injury must be inquired into. Analo- 
 gies with cases affecting personal property will frequently 
 present themselves, but they do not signify that the rule in one 
 case is the rule in the other. A railroad company covenants, for 
 instance, in consideration of the right of way through A.'s land, 
 to erect a station, and permit him to cultivate all the land com- 
 prised in the grant which is not needed by the railroad. On a 
 breach of this covenant, the measure of damages is the differ- 
 ence between the value of the lands as they are, and the increased 
 value they would have had if the covenants had been performed.' 
 This recalls the case of warranty of a chattel ; but, as will be 
 presently seen, an actual warranty in the case of real estate is 
 governed by rules not resembling those applicable to warranties 
 of chattels. 
 
 The great apparent exception to the rule that contracts re- 
 lating to real estate are governed by the same principles which 
 prevail elsewhere is found in the ordinary covenants contained 
 in deeds; here one at least of the exceptional rules is sanctioned 
 by experience and authority ; while the other has come down to 
 us from times when the general principles of the law of damages, 
 and especially of value, had not been developed. 
 
 The ordinary covenants in a deed of land are (1) that of seisin; 
 (2) that of right to convey (these two covenants are synonymous 
 and mean that, at the time of the conveyance, the grantor has 
 title ; if he has not, they are broken at once) ; (3) that of war- 
 ranty; (4) that of quiet enjoyment (these relate solely to the 
 future, and bind the grantor and his heirs indefinitely to make 
 the covenant good) ; (5) "the covenant against encumbrances. 
 
 The exceptional rules relate to all these covenants, and their 
 basis is the principle, that wherever there has been a breach, the 
 consideration of the deed, and not the real value of the lands at 
 the time of the eviction, shall fix the damages. The cases which 
 arise are, under the first two covenants, lack of title, partial or 
 
 ' Mobile & M. Ry. Co. v. Gilmer, 85 Ala. 422. But see Eckington & 
 Soldiers' Home Ry. Co. v. McDevitt, 191 U. S. 103. 
 
CONTRACTS AFFECTING REAL ESTATE. 335 
 
 total, at the time of the conveyance; under the others, either 
 eviction from whole or part of the land, or the establishment of 
 the fact at some later date, that an encumbrance or superior title 
 exists (which also may result in eviction). On general principles 
 the measure of the damages would be fixed by the value of the 
 bargain, — e. g., in case of a total eviction, the value of the prop- 
 erty lost, with interest for such a period as the covenantee may 
 be liable for mesne profits, to the person holding the superior 
 title. The value would be taken, in the case of the covenant of 
 seisin at the time of the conveyance, for it is then that the breach 
 occurs; in other cases, the value would be taken at the time of 
 actual eviction. In neither class of cases is this the actual rule.' 
 
 Rules. 
 
 105. For breach of the covenant of seisin the measure of dam- 
 
 ages is the consideration paid with interest; ^ in the 
 case of 'partial eviction, a proportional part of the 
 consideration. 
 
 106. For breach of the covenant of warranty or quiet enjoymerd, 
 
 the measure of damages is the consideration, or a pro- 
 portional part of it, with interest during the period for 
 which there is a legal claim against the vendee for mesne 
 profits, together with the expenses of the eviction suit.' 
 
 Illustrations. 
 
 (o) The action is for breach of covenants of seisin and quiet en- 
 joyment. The vendee cannot recover for improvements, nor for 
 increased value.* 
 
 ' The rules given in the text are believed to be those generally in force. 
 In some States, the measure of damages is made to depend upon the 
 value at the time of the breach, as in the case of any other contract. In 
 Massachusetts, on a covenant of warranty, the measure of damages is the 
 value of the estate at the time of eviction together with the value of the 
 improvements. Cecconi v. Rodden, 147 Mass. 164. The leading case in 
 Massachusetts is Gore v. Brazier, 3 Mass. 523, 543. 
 
 ' The cases given as illustrations will frequently be found to allow 
 damages due to other elements of injury. The rules only state the normal 
 measure. 
 
 ' Pitcher v. Livingston, 4 Johns. 1. The vendee is often allowed for 
 
336 ELEMENTS OF THE LAW OP DAMAGES. 
 
 (6) The covenants broken, embracing the covenant of seisin, 
 are held to give no greater rights than that covenant. For breach 
 of this, through an ejectment suit brought by the real' owner, the 
 vendee's measure of damages is the consideration in the deed, with 
 interest, for the same period of time as is covered by any legal 
 claim against him (by the holder of the superior title) for mesne 
 profits ; together with the costs and reasonable counsel fees in the 
 ejectment suit, for this suit the warrantor was bound to defend. 
 There can be no recovery for the costs in the suit for mesne profits ; 
 the warrantor was not bound to defend it.^ 
 
 (c) In an action for breach of the covenant of seisin, it appears 
 that the defendant had no title at the time of conveyance; the 
 measure of damages is the consideration with interest.^ 
 
 (d) The covenant broken is that of seisin, the failure of title and 
 eviction being partial. The measure of damages is a sum which 
 bears to the total consideration- the same proportion which the value 
 of the tract lost bears to the value of the whole tract.^ 
 
 (e) W. covenants that he is seised and has good right to convey ; 
 but his deed only conveys a title to a fractional undivided interest. 
 The measure of damages is the proportion of the purchase-money 
 which the interest not conveyed bears to the portion to which the 
 title has passed.* 
 
 improvements in the eviction suit, to the extent of the value of the rents 
 and profits. This seems to have been so, even in the ancient real actions. 
 Viner's Abr. tit. Discount. 
 
 ■ Staats V. Ten Eyck's Exrs., 3 Caines, 111. The opinion is by Kent, 
 C. J. See Chap. III. When it is said that the warrantor is bound 
 to defend, it is not meant that he is bound to come in as a party de- 
 fendant. The plaintiff may notify the warrantor to come in, but cannot 
 compel him to do so. If he does not, the covenantee may defend him- 
 self, and still recover from the warrantor. The difference between the 
 two cases is solely in the force and effect of the two judgments. In the 
 first, the judgment becomes competent evidence in the subsequent pro- 
 ceedings upon the warranty. In the second, it is not evidence at all; 
 the grantee must prove all the f^cts which (had the warrantor defended 
 and been defeated) would have been proved for him. Boyle v. Edwards, 
 114 Mass. 373. To recover counsel fees there should always be notice. 
 The warrantor may know that there is no answer to the suit, and should 
 not be charged with expenses of useless litigation. Wiggins v. Pender, 
 132 N. C. 628; 61 L. R. A. 772. 
 
 ' Montgomery v. Reed, 69 Me. 510. 
 
 ' Bibb V. Freeman, 59 Ala. 612. 
 
 ' Tone V. Wilson, 81 111. 529. 
 
CONTRACTS AFFECTING REAL ESTATE. 337 
 
 (J) A tenant in common conveys common property with a cove- 
 nant of seisin; the deed is inoperative against his co-tenants, but 
 the co-tenants confirm the grant. There has been a breach of the 
 covenant, but no actual damage. The plaintiff can only recover 
 nominal damages.' 
 
 (g) The breach is occasioned by an outstanding contingent 
 remainder, the deed having given the vendee at least a life estate, 
 and he having had the benefit of possession. At law the measure 
 of damages will be the difference between the Ufe estate acquired 
 and the fee contracted for. In equity the vendee must account for 
 the mesne profits.^ 
 
 (h) L. conveys to M. with full covenants of warranty and seisin 
 land to which he has no title, and this is held to be a constructive 
 eviction; subsequently the grantor obtains a good title to all but 
 a part of the land, which enures to the benefit of the grantee. By 
 direction of persons who meantime hold the superior title, timber 
 is cut and taken away. The measure of damages is : 1. The value 
 of this timber; 2. Such proportion of the whole purchase-money 
 as the value of the part to which the title has failed bears to the 
 whole value.* 
 
 The covenant against encumbrances is broken at once, at the 
 time of the conveyance, if any encumbrance exists. But there 
 may be no damage from it beyond what the law implies in any 
 such case. Substantial damage may accrue in a variety of ways. 
 The encumbrance may be such that in order that the conveyance 
 should be of any benefit to the grantee it should be at once ex- 
 tinguished. A common case is that of a mortgage subject to 
 immediate foreclosure. Or, the encumbrance may, as in the case 
 of a right of way, or other easement, diminish the value of the 
 estate ; permanently, if it cannot be removed, temporarily, if it 
 can be extinguished. Finally, the encumbrance may be of such 
 a character as to result in the actual eviction of the grantee. In 
 all these cases, the measure of damages must be the total amount 
 
 ' Hartford & Salisbury Ore Co. v. Miller, 41 Conn. 112. This is a good 
 illustration of a benefit accepted by the person injured, and actually 
 reducing the damages to nothing. See Chap. IX. 
 
 ' Curtis V. Brannon, 98 Tenn. 153; 69 L. R. A. 760. 
 
 ' Mclnnis v. Lyman, 62 Wis. 191. 
 
 22 
 
338 ELEMENTS OF THE LAW OF DAMAGES. 
 
 of injury, but whenever the consideration is resorted to to limit 
 the loss, the result will be different from what it will be in those 
 jurisdictions in which the actual value is taken ; and this will be 
 only in cases of eviction, total or partial. In all other cases, as 
 when the covenantee himself extinguishes the encumbrance 
 (e. g., by paying off a mortgage),' or when the encumbrance is 
 permanent, and the value of the property is by so much dimin- 
 ished, the actual loss measures the damages. A partial failure 
 of title presents practically the same case. The only way in 
 which a general rule can be stated would perhaps be : — 
 
 Rules. 
 
 107. For breach of the covenant against encumbrances, when 
 
 there has been a total eviction, the measure of damage is 
 the consideration. For partial eviction, the measure of 
 damages is a proportional part of the consideration. 
 
 108. For a permanent encumbrance the measure of damages is 
 
 the difference in valu£ not exceeding the consideration 
 of what purports to be and what is conveyed. 
 
 109. For an encumbrance removable at reasonable expense, the 
 
 measure of damages is the cost of removing it. 
 
 110. The covenantee is not restricted to the nominal considera- 
 
 tion. He may prove the actual price paid. 
 
 Illustrations. 
 
 (o) The covenantee is evicted by reason of an antecedent mort- 
 gage. The measure of damages is the amount of the consideration 
 money with interest.^ 
 
 (6) Suit is brought on the covenant against encumbrances; the 
 covenantee bought the land for $250, and has put on improve- 
 ments worth $2,000. The encumbrance is a judgment on an un- 
 divided moiety, under which encumbrance one half is sold. The 
 measure of damages is $125.^ 
 
 (c) The encumbrance is a permanent right of way. It is found 
 that the damage to the time of suit is $10, but that the property is 
 
 • Under the rule of avoidable consequences. 
 
 ' Stewart v. Drake, 9 N. J. L. 139. 
 
 ' Dimmick v. Lockwood, 10 Wend. 142, 154. 
 
CONTRACTS AFFECTING REAL ESTATE. 339 
 
 worth $750 less than if it had been free from the encumbrance. 
 The measure of damages is $750.' 
 
 (d) The encumbrance is a permanent right of way. The mea- 
 sure of damages is the diminution in value at the time of the 
 deUvery of the deed with interest.^ 
 
 (e) The permanent title consists of a mortgage, the amount of 
 the debt secured by it being less than the value of the land. The 
 mortgagee sues and obtains a conditional judgment ; the vendee 
 may now discharge the encumbrance and obtain a clear title. His 
 measure of damages against his covenantor is the amount of mort- 
 gage debt with interest, and costs of the mortgagee's suit.^ 
 
 (/) The vendee has not paid off the encumbrance, but has re- 
 mained in peaceable possession, and there is a mere possibility 
 that a claim under it may be made. In such an event the probability 
 is that by a complaint in equity the covenantor may compel third 
 parties to pay the claim. Under these circumstances the covenantee 
 has no claim for substantial damages.* 
 
 ig) The encumbrance is a mortgage, but the covenantee has 
 paid nothing toward removing it. He can recover nothing for 
 breach of the covenant.* 
 
 (h) The encumbrance is a lease. The measure of damages is 
 the rental value of the property during the term of the lease.* 
 
 (t) The encumbrance is an inchoate right of dower in a part 
 of the estate. The only evidence of substantial damage is that 
 the covenantee had paid an auctioneer $50 for selUng the estate at 
 auction, and that the purchaser had refused to complete the pur- 
 chase on learning of this defect. A verdict for $50 cannot be sus- 
 tained; the plaintiff has not been disturbed in the enjoyment of 
 Ms estate, and has paid nothing to extinguish it. Under the cir- 
 cumstances, his only damage must be the direct injury resulting 
 from the encumbrance. The damages claimed are remote.' 
 
 (j) A. for the sum of £10 conveys to B. an interest in lands with 
 covenants for quiet enjoyment and warranty as regards himself, 
 
 ' Mitchell V. Stanley, 44 Conn. 312. 
 
 '' Bailey v. Agawam National Bank, 190 Mass. 20; 3 L. R. A. (n. s.) 98. 
 ' Donahoe v. Emery, 9 Met. 63; cf. Tufts v. Adams, 8 Pick. 547. 
 * Grant v. Tallman, 20 N. Y. 191. 
 ^ Tufts V. Adams, 8 Pick. 547. 
 
 " Brown v. Taylor, 115 Tenn. 1; 4 L. R. A. (n. s.) 309. 
 ' Harrington v. Murphy, 109 Mass. 299; cf. Bradshaw v. Crosby, 151 
 Mass. 237. 
 
340 ELEMENTS OF THE LAW OF DAMAGES. 
 
 and those claiming through him. B. is evicted. The actual value 
 is agreed by the parties to be £500. The measure of damages is 
 £500.1 
 
 (k) The consideration named in a deed is $2,000. The actual 
 consideration is shown to have been two lots valued at $500, and a 
 note for $1,000. In an action for breach of warranty, as between 
 grantor and grantee, the measure of damages is $500 with interest, 
 and the value of the note.^ 
 
 (l) The action is for breach of the covenant of seisin. The 
 rule is the same.' 
 
 (m) The land is paid for in stock of a corporation at a fictitious 
 value. The actual value of the stock (the real consideration) is the 
 measure of damages.* 
 
 Covenants to remove existing encumbrances, or to pay all 
 claims against the land sold, or to save the covenantee harmless 
 from any claims, are totally different from the ordinary covenant 
 against encumbrances. They are either agreements for an in- 
 demnity, in which case no claim arises until something has been 
 paid ; or they are agreements to pay in any event, in which case 
 the mere non-payment by the covenantor of the existing claim 
 constitutes a breach.^ 
 
 The foregoing rules, so far as they substitute consideration for 
 value, cannot be defended upon principle. It is sometimes said 
 that in case of a deed, the consideration is solemnly agreed upon 
 as the value of the bargain ; but, as has been shown, the nominal 
 consideration does not govern; and again, the same thing might 
 be as well said of the consideration in any other contract. 
 Throughout the whole range of contract consideration is price, 
 the value of the bargain is a totally different matter. The object 
 of compensation is to put the plaintiff in the position in which 
 he would have been had the contract been performed. The 
 effect of letting him recover only the consideration of a contract 
 is to put him in the same position as if he had not made the con- 
 
 ' Jenkins v. Jones, 9 Q. B. D. 128. 
 
 ' Howell V. Moores, 127 111. 67, 86; ace. Cook v. Curtis, 68 Mich. 611. 
 
 ' Bingham v. Weiderwax, 1 Comst. 609. 
 
 * McGuffey v. Humes, 85 Tenn. 26. 
 
 ' See Chap. XIX. 
 
CONTRACTS AFFECTING REAL ESTATE. 341 
 
 tract. The principle of fixing the limit of recovery in the case of 
 eviction at the time, not of the breach, but of the conveyance, 
 rests on other considerations. A warranty at common law was 
 made good by a dehvery of lands of equal value with those to 
 which the title had failed. The money covenant is a substitute 
 for this. There is no evidence to be found that in the Middle 
 Ages the warranty meant other lands equal in value to those 
 which had been lost, however much increased by improvement 
 or accident; it may, therefore, be said that. the covenant which is 
 the substitute for the old warranty can hardly mean more than 
 that did. Again, the agreement is really to defend the title to 
 the lands as conveyed, — to make good the title, and the fact 
 that the covenant runs on indefinitely does not make the con- 
 tract one to indemnify for a totally different loss. Finally, it is 
 said: Who would be willing to be bound indefinitely, for a 
 consideration fixed by present value, to pay for lands which may, 
 by the pressure of population and business, be converted from 
 a waste into property of enormous value ? It is such consider- 
 ations as these which have generally led to the conclusion that, 
 the value at the time of eviction cannot govern.^ 
 
 Sales. — The rules of damages with regard to real estate con- 
 tracts may be said in general to be in harmony with those gov- 
 erning elsewhere, except where the peculiarities of real property 
 make it impossible. Sales of real estate furnish an illustration 
 of this. In the case of a breach by vendee, the rule is practically 
 the same as in the case of chattels, — that the vendor recovers 
 nominal damages, unless the land has declined in value, when he 
 recovers the diilerence between the contract price and the value 
 of the land left on his hands.' The idea, fostered by a dictum in 
 
 * For a fuD consideration of the subject, see Rawle on Covenants for 
 Title, ch. ix. 
 
 ' Shannon v. Comstock, 21 Wend. 457; Laird v. Vim, 7 M. & W. 474. 
 For a good discussion of this subject, see Congregation Beth Elohim v. 
 Central Presb. Church, 10 Abb. Pr. (n. s.) 484. In the case of legal sales' 
 by auction, the vendor has the right to resell and hold the original pur- 
 chaser for the deficiency; but no such measure of damages exists elsewhere. 
 Cowdery v. Greenlee, 126 Ga. 786; 8 L. R. A. (u. s.) 137. 
 
342 ELEMENTS OP THE LAW OF DAMAGES. 
 
 a New York case * that a vendor can, by the tender of a deed, 
 put himself in the position of haivng completely performed, and 
 recover the price agreed upon, and then keep the land, is sup- 
 ported neither by principle, nor by direct authority. His tender 
 gives him the right to an action ; but the measure of damages is 
 another question. It would be strange indeed if here so singular a 
 principle should exist, of which the law of sales of personal prop- 
 erty shows no trace. "The vendor cannot have the land and its 
 value too." ^ On the whole, there may be said to be no differ- 
 ence in the rule as to damages against the vendee between per- 
 sonal and real property. 
 
 When, however, we come to damages against the vendor, the 
 case is wholly different. Here, in the case of personal property, 
 the purchaser recovers the value of his bargain. But in the case 
 of real estate sales, in England, the rule is that the plaintiff re- 
 covers, not the value of his bargain, but merely any deposit paid 
 down to bind the bargain, with interest and costs.' The reason 
 for this rule is that whereas, in the case of personal property, 
 every one is supposed to know his title, real estate titles in Eng- 
 land are matters of peculiar intricacy, involving considerations 
 of fact as well as of law, and a possessor may be in total ignorance 
 whether his title is bad or good, untU an examination has been 
 made. The fact that titles in England are not generally recorded 
 gives this reason more force. In this country, in some States, 
 the rule has been adopted ; * but it might be supposed that in a 
 country in which all titles are matters of record the rule would 
 soon lose its force ; and the Supreme Court of the United States 
 early laid it down that it recognized no difference between real 
 and personal property,' and this may be said to be the prevailing 
 
 ' Richards v. Edick, 17 Barb. 260. 
 
 ' Per Parke, B., in Laird" ■«. Pim, supra. 
 
 ' Flureau «. Thomhill, 2 Wm. Bl. 1078; Bain v. Fothergill, L. R. 6 Ex. 
 69; L. R. 7H L. 158. 
 
 " Margraf v. Muir, 57 N. Y. 155; Burk v. Serrill, 80 Pa. St. 413 ; Gerbert 
 V. Trustees, 59 N. J. L. 160; 69 L. R. A. 764. If the vendee, being in pos- 
 session, erects buildings on the land, the loss under the rule in Flureau v. 
 Thomhill falls upon him. Ibid. 
 
 » Hopkins v. Lee, 6 Wheat. 109. 
 
CONTRACTS AFFECTING REAL ESTATE, 343 
 
 , rule in the United States.* It will be noticed this is one of the few 
 cases in which a rule in contract is based on the defendant's state 
 of mind, — his bona fide ignorance as to his title. Consequently, 
 even in those jurisdictions where the rule in Flureau v. Thornhill 
 is law, an inquiry is always permissible as to good faith and 
 knowledge. If the vendor can convey, but will not; or if, when 
 he agreed to convey, he knew that he would not be able to do so, 
 he is everywhere held liable for the value of his bargain.^ It is 
 practically impossible to state rules of general application on this 
 subject. 
 
 ' See the cases collected, 3 Sedg. Dam. § 1012. 
 = Margraf v. Muir, 57 N. Y. 155. 
 
CHAPTER XXIV. 
 
 CONFLICT OF LAWS. 
 
 Whenever suit is brought in one jurisdiction on a contract 
 made or to be performed, or on a tort committed in another, if 
 the rules in the two jurisdictions governing the quantum of re- 
 covery differ, the question arises as to which rule is to be ap- 
 plied. The general principles of law make this question depend 
 upon whether the rule of damages is to be regarded as a matter 
 of substantive right or of the remedy. If the former, then in 
 cases of contract the rule of damages is governed by the law of 
 the place where the contract was made or where it was to be 
 performed, in tort, by the law of the place where the cause of 
 action arose; if the latter, then by the law of the place where 
 the suit is brought. The weight of authority puts the measure 
 of damages on the footing of substantive right and not on that 
 of remedy. As to interest, however, there is a conflict of opin- 
 ion, for while what is called contractual interest, i. e., interest 
 accruing by virtue of an agreement, is generally held to be a 
 matter of substantive right, interest which accrues as damages 
 for contract broken or on a judgment is in some jurisdictions 
 held to pertain to the remedy and to be governed by the lex 
 fori. This seems to be a local and technical rule. 
 
 Illustration. 
 
 Bonds payable in New York are secured by a mortgage on real 
 estate in Rhode Island. Interest, whether on the debt or by way 
 of damages, is to be computed according to the New York rate.' 
 
 The question in contract hinges on the intention of the parties; 
 i. e., the law with a view to which the contract is made.^ This 
 
 ' Kavanaugh v. Day, 10 R. I. 393. 
 
 ' Wayman v. Southard, 10 Wheat. 1, 48; Pritchard v. Norton, 106 
 U. S. 124. 
 
CONTLICT OP LAWS. 345 
 
 law may be that of the jurisdiction within which the contract is 
 made {lex loci contractiis), or that of another jurisdiction, — the 
 place of performance (lex loci solutionis). The measure of 
 damages must be governed by one or the other, or else, on a 
 different principle, in contracts purporting to convey land, by 
 the lex rei sitce. In all cases of conflict of laws, too, public 
 policy may affect the decision of the court, since it is only by 
 comity that the law of one State is given force and effect in 
 another. 
 
 Illustrations. 
 
 (a) Contract to convey land and personal property in Massa- 
 chusetts; the contract was made in New York and the deed was 
 to be delivered and paid for there. The New York measure of 
 damages is nominal ; in Massachusetts it is substantial. On 
 suit for breach brought in Massachusetts, the New York rule 
 governs.' 
 
 (6) Suit is brought in Connecticut against the acceptor on a bill 
 drawn, accepted, and transferred in the State of New York. By 
 the law of that State the recovery is limited to the amount paid for 
 the bill. Held, that the New York rule must be followed.^ 
 
 In actions against carriers and telegraph companies, the matter 
 may be compUcated by other considerations. The true principle 
 would seem to be to ask first. Where is the place of perform- 
 ance ? What is the law which the parties have in view ? In 
 the case of a telegram, what is contemplated is the conveyance 
 and delivery of intelligence at a particular place. In the case of 
 a carriage of goods, it is the safe carriage and delivery of these 
 at a particular place. The breach may occur en route; e. g., 
 the goods may be destroyed in transit; the message may be at 
 some intermediate station mis-addressed. But it is not this 
 intermediate point which the parties had in mind ; it was the 
 ultimate destination. Hence in such cases the ultimate lex loci 
 solutionis (if there is a different rule of damages in the three 
 jurisdictions in question) would seem to be that which should 
 govern. 
 
 ' Atwood V. Walker, 179 Mass. 614. 
 
 ' Roe V. Jerome, 18 Coim. 138. 
 
346 elements of the law of damages. 
 
 Illustration. 
 
 Telegram to Louisville, Kentucky, from Booneville in Indiana. 
 At Evansville, Indiana, a mistake in transfer is made, and the 
 despatch fails to reach the person addressed. The Kentucky rule 
 of damages as to mental suffering applies.* 
 
 But the same court makes a distinction between this and 
 the case of carriage of goods, alid other cases hold that the rule 
 of damages in telegraph cases should be that of the place of con- 
 tract made.^ 
 
 In tort, statutory or non-statutory, the rule of damages is fur- 
 nished generally by the lex loci delicti, not the lex fori, subject 
 to the qualification that the same question may be decided by 
 different courts in different ways, according as it is looked 
 upon in one as relating to the remedy, in the other to the 
 substance. 
 
 The statutory action for causing death is transitory, and may 
 be brought in a jurisdiction other than that in which the cause 
 of action arose. It may even be brought by an administrator ap- 
 pointed within this foreign jurisdiction; in all such cases any 
 damages recovered must be disteibuted in accordance with the 
 provisions of the statute.' 
 
 Illustrations. 
 
 (a) Action for causing death, the cause of action having 
 arisen in Montana, the forum being the Federal court in Minne- 
 sota. In Montana the recovery is unlimited; in Minnesota there 
 
 > W. U. Tel. Co. V. Lacer, 29 Ky. L. 379; 5 L. R. A. (n. s.) 751. 
 
 ' Johnson v. W. U. Tel. Co., 144 N. C. 410; 10 L. R. A. (n. s.) 256. Is 
 not the place of the final performance of a contract just as much part of 
 the law with a view to which the contract is made as the place of the 
 making of the contract? Some of the cases speak as if there were a wide 
 difference between a continuous contract to carry goods from San Francisco 
 to New York and deliver them, and a contract to deliver in New York 
 goods sold in San Francisco. But as to the damages, what difference is 
 there in case of non-delivery? 
 
 » Dennick v. Railroad Co., 103 U. S. 11; iJe Coe, 130 la. 307; 4 L. R. A. 
 (N. s.) 814. 
 
CONFLICT OF LAWS. 347 
 
 / , 
 is a pecuniary limit fixed by statute. The Montana statute 
 governs.' 
 
 (6) Action for causing death brought in Massachusetts, the 
 cause of action having arisen in Connecticut, in which State exem- 
 plary damages are recoverable, while in Massachusetts they are 
 not. This is a matter of remedy, and the Massachusetts rule 
 governs.^ 
 
 Public policy may, in cases of extreme divergence between the 
 jurisprudence of the two jurisdictions, lead either to the right of 
 action being refused altogether, or to its being entertained to 
 such an extent as it is held to be applicable. 
 
 Illustrations. 
 
 (a) The foreign right of recovery is so different from that of 
 the forum as to be incapable of enforcement ; an action cannot be 
 maintained.^ 
 
 (6) The cause of action (injury due to negligence) arises in 
 Mexico, by the law of which country an extraordinary indemnity 
 is recoverable in consideration of social position. This only affects 
 the remedy, and does not increase the measure of damages to be 
 recovered on a suit brought in the United States.* 
 
 (c) The question of what elements of damage are proper for the 
 jury, e. g., mental anguish or solatium, is one pertaining to the 
 right, not the remedy, and hence the lex loci delicti governs.^ 
 
 It is a general rule of law that the penal statutes of one juris- 
 diction are not enforceable in another. Hence if a statute giving 
 damages for death caused by a vsTongful act is held to make pro- 
 vision for a penalty rather than for a measure of simple compen- 
 sation, no recovery can be had under it, though, as a matter of 
 
 ' Northern Pacific R. R. Co. v. Babcock, 154 U. S. 190. Cf. Wooden 
 V. W. N. Y. & P. R. R. Co., 126 N. Y. 10, in which the opposite conclusion 
 was reached. 
 
 ' Higgins V. Cent. N. E. & W. R. R. Co., 155 Mass. 176. 
 
 > Slater v. Mexican N. R. R. Co., 194 U. 8. 120. 
 
 ' Evey V. Mex. Cent. R. R. Co., Ld., 81 Fed. 294; 62 U. S. App. 118; 
 38 L. R. A. 386. 
 
 » Louisville & Nashville R. R. Co. v. Graham, 98 Ky. 688. 
 
348 ELEMENTS OF THE LAW OP DAMAGES. 
 
 fact, its enforcement might result in the same measure of com- 
 pensation as under a similar non-penal statute. The test seems 
 to be whether the amount recoverable is made dependent on the 
 culpability of the defendant rather than on the damage sustained 
 by the plaintiff.' 
 
 • Adams v. Fitchburg R. R. Co., 67 Vt. 76. 
 
PART III. 
 
 CHAPTER XXV. 
 
 PLEADING AND PRACTICE. 
 
 It may serve to make clearer parts of what has gone before, 
 if in conclusion a few matters are mentioned bearing on the 
 measure of damages as it presents itself in pleading and in 
 practice; these could not well be explained in advance of a 
 general survey such as we have attempted. 
 
 Modern systems of procedure require pleading to be intelligi- 
 ble rather than nice ; and hence, when the facts which constitute 
 the cause of action import damage, a formal allegation of the 
 precise nature of the injury suffered is not necessary. Such 
 facts being stated, the natural and proximate damages are re- 
 coverable without further allegation. It is only where there are 
 special damages which might not necessarily flow from the cause 
 of action at all that an allegation of the precise nature of the in- 
 jury is called for.' 
 
 Illustrations. 
 
 (a) The action is for wrongfully appropriating defendant's water 
 power. It is not necessary to allege the precise nature of the pe- 
 cuniary injiuy suffered.^ 
 
 (6) In an action for negligently causing the death of a boy, 
 loss of service by the father is imported; but not a loss based on 
 anticipation of receiving pecuniary benefits from a continuation of 
 the life of the deceased subsequent to his minority.^ 
 
 ' See Chap. XII. 
 
 ' Green Bay & M. C. Co. v. Kaukauna Water P. Co., 112 Wis. 323; 
 62 L. R. A. 679. 
 
 ' Luessen v. Oshkosh Electric L. & P. Co., 109 Wis. 94. 
 
350 ELEMENTS OF THE LAW OF DAMAGES. 
 
 As already explained, nominal damages are always recoverable 
 in contract and generally in tort, even though no actual damages 
 be proved. There are cases where there is a right to recover 
 substantial damages without any proof of actual damage. In 
 slander, for instance, when the words affect the plaintiff in his 
 trade or profession, they import injury, and the plaintiff is en- 
 titled to some compensation though he neither alleges nor 
 proves any special injury. In many cases it would be impossible 
 to show any actual special damage, but the injury being by its 
 very nature serious compensation follows. A case very like this 
 in quite another field is the action for dishonoring a check or 
 draft. Generally speaking no damages are given for non-pay- 
 ment of money beyond interest, which is held to be the normal 
 loss, but in actions against bankers who, being in funds, refuse 
 to donor drafts of depositors the rule is quite different. Here, 
 as in slander (if the plaintiff is a trader or merchant), the refusal 
 is held to import damage, and verdicts for substantial amounts 
 may be recovered without further proof. Some cases go so far 
 as to dispense with the necessity of an averment that plaintiff 
 is a trader or merchant; but this may be questioned, for a 
 refusal to honor an ordinary bank check hardly involves of 
 necessity substantial damage. 
 
 As to this class of cases the result of the authorities apparently 
 is, first, that substantial damages may always be recovered 
 where special damages are set up and proved ; and, second, that 
 even where such damages are not set up, averment and proof 
 that plaintiff is one whose credit is directly affected by refusal 
 to donor drafts will support a verdict for substantial damages. 
 Such an action may be for breach of the contract to take up and 
 cash the drafts of the customer, or in tort for breach of the duty 
 to exercise due care in the performance of the contract.- Damages 
 of this sort fall under the head of general damages, and as to 
 their measure it is said that they must be "temperate;" that is, 
 if they are not reasonably within bounds as to amount, the court 
 will reduce them. No reason seems to exist, however, why in a 
 gross case exemplary damages should not be given.' 
 
 > Marzetti v. Williams, 1 B. & A. 415; Rolin v. Steward, 14 C. B. 595; 
 Prehn v. Royal Bank of Liverpool, L. R. 5 Exch. 92 ; Patterson v. Marine 
 
PLEADING AND PRACTICE. 351 
 
 Illustration. 
 
 A bank rejects a check drawn upon it by a customer averred 
 and proved to be a trader. Held, that the natural effect is an in- 
 jury to his standing so far as knowledge of the fact extends, for 
 which he is entitled to "substantial though temperate damages 
 measured by all the facts in the case." ' 
 
 Another illustration of substantial damages without proof of 
 actual damages is found in the law of Nuisance. A nuisance, it 
 is said, may cause special damage to a private person, where 
 such damage is not susceptible of direct and tangible measure- 
 ment. In such cases the law gives damages for "injury to the 
 right," and the jury has a large discretion as to the amount.^ 
 
 For an injury to a right of substantial value, involving, e. g., 
 the deprivation of the use of property, general damages are 
 always recoverable. That the plaintiff may be able to dispense 
 with the use does not diminish his right. To adopt an illustra- 
 tion put by Lord Chancellor Halsbury, a person who takes 
 away a chair from A.'s house and keeps it for twelve months 
 cannot diminish the damages by showing that A. does not usu- 
 ally sit in it, or that there were plenty of other chairs in the 
 room. He cannot convert a right of substantial value into a 
 right to nominal damages by any such process. 
 
 Illustration. 
 
 A lightship belonging to a Harbor Board and used for Ughtihg 
 approaches is damaged in a collision caused by the negligence of A. 
 The place of the damaged Ughtship is taken by another, always kept 
 ready for the purpose. The board recovers not merely the ex- 
 
 Nat'l Bank, 130 Pa. 419; Atlanta Nat'l Bank v. Davis, 96 Ga. 334; 
 Schaffner v. Elinnan, 139 111. 109; Hilton v. Jesup Banking Co., 128 
 Ga. 30; 11 L. R. A. (n. s.) 224. But plaintiff's loss of custom and credit 
 from particular persons are special, and caimot be proved unless set up. 
 Flemmg v. Bank of New Zealand, [1900] A. C. 577. 
 
 ' J. M. James Co. v. Bank, 105 Tenn. 1; 51 L. R. A. 255. 
 
 2 Wood, Nuisances, § 866; Van Fossen v. Clark, 113 la. 86; 52 L. R. A. 
 279. 
 
352 ELEMENTS OF THE LAW OF DAMAGES. 
 
 penses of repairs, but substantial damages for the loss of the use 
 of the damaged ship during the time her place was taken.* 
 
 In such cases the vessel is earning nothing, and there can be 
 no question of profit, because the work is not done for profit. 
 Profits would be special damages. The damages, however, are 
 not nominal but general, and consist of the expenses caused, 
 which may include hire of another vessel, and must at any rate 
 give something, e. g., demurrage, for the value of the use of the 
 property of which the owner is deprived.^ 
 
 In stating his claim, the pleader makes the amount of his 
 damages sufficiently large to cover any possible aspect of proof as 
 it may be made, and for a single cause of action demands a sum 
 in gross, which is called the ad damnum. This, with few ex- 
 ceptions, sets a Umit beyond which the verdict cannot go. 
 
 But a pleader is not bound to state: the manner in which he 
 computes the amount ; all he is called upon to do in suing for 
 general damages is to state the facts on which he relies for a 
 recovery, and the amount claimed. When special damages are 
 demanded the particular items upon which he sues must be 
 specified.^ 
 
 In most suits nominal damages are recoverable, even if sub- 
 stantial damages cannot be proved; but whenever damage is 
 the gist of the action, it must be proved to warrant any recovery at 
 all, and in all such cases an averment of damage is essential. 
 For failure to make such an averment, a demurrer will he. 
 Personal injury cases and, in some jurisdictions, actions against 
 a sheriff for breach of his official bond through failure to execute 
 mesne process are of this character.* 
 
 All special damages must be pleaded. The rule in Hadley v. 
 Baxendale forbids the recovery of profits on a collateral contract 
 unless they are shown to have been vnthin the contemplation 
 
 > The Mediana, [1900] A. C. 113. Cf. The Marpessa, [1907] A. C. 241. 
 
 " The judgment in The Bodlewell,,[1907] P. 286, seems to involve these 
 distinctions in confusion. 
 
 ' Freeman v. Macon Gas L. & W. Co., 126 Ga. 843; 7 L. R. A. (n. s.) 
 917. 
 
 * Beck & G. H. Co. v. Knight, 121 Ga. 287; 3 L. R. A. (n. b.) 420. 
 
PLEADING AND PKACTICE. 353 
 
 of the parties. Such profits are special damages, and it has been 
 held to follow that unless pleaded the complaint is in so far 
 demurrable.' 
 
 For breach of an agreement to make a loan, e. g., to take 
 debentures in a company, the damages may be nominal or may 
 be substantial. If the loan can readily be obtained elsewhere, 
 they are nominal. If there are special damages, they must be 
 alleged and proved.^ 
 
 In all cases the question whether an allegation of special 
 damage is necessary depends on whether the damage claimed is 
 the natural, probable, and proximate result of the cause of action 
 as set forth in the complaint, or something produced by an 
 intervening cause not to be naturally inferred as likely to con- 
 tribute to the effect; and in any suit or contract the allegations 
 connecting the damages with the alleged cause of action must 
 clearly show that one was the proximate and natural cause of the 
 other.* But this is enough ; an averment that it is the natural 
 and proximate cause is not required.* 
 
 The question of special damages must not be confounded 
 with that of special as distinguished from market value. In an . 
 action for killing a horse, the general rule for ascertaining the 
 measure of damages is the value; this means the value of the 
 particular animal, not the general market value of horses. 
 Evidence of this special value does not raise a question of special 
 damages.^ 
 
 Whenever the verdict is for a sum which is so plainly inade- 
 quate or excessive as to compel the belief that the jury in arriv- 
 ing at it was influenced by passion, prejudice, or ignorance, the 
 court will set it aside and order a new trial. It will not be set 
 aside because the court (either below or on appeal) would itself 
 have given less or more, nor unless it is of opinion that no jury 
 could have reasonably given it, or that to arrive at such an 
 
 ' Goodin v. Southern Ry. Co., 125 Ga. 630; 6 L. R. A. (n. s.) 1054. 
 In any case, they cannot be proved. 
 
 ' South African Territories, Ld., v. Wallington, [1897] 1 Q. B. 692. 
 2 McGuire v. Gerstley, 204 U. S. 489. 
 * Gariand v. Aurin, 103 Tenn. 555; 48 L. R. A. 862, 
 ' Loesch V. Koehler, 144 Ind. 278 ; 35 L. R. A. 682. 
 
 28 
 
354 ELEMENTS OF THE LAW OP DAMAGES. 
 
 amount matters which ought not to have been considered must 
 have been taken into account, or a wrong measure of damages 
 applied.' 
 
 Illustrations. 
 
 (o) The action is against a telegraph company for publishing 
 a telegram (merely by transmitting and delivering it to plaintiff), 
 containing abusive language tending to bring a person to whom it 
 is applied into odium and contempt. A verdict for $5,200 is ex- 
 cessive.^ 
 
 (6) The action is assault and battery. A new trial may be 
 granted on the ground of inadequacy of damages.^ 
 
 (c) Personal injury. The verdict would yield annually more 
 than the person injured could have earned before the injury. The 
 verdict is excessive.* 
 
 (d) In a jurisdiction in which the limit of damages caused by 
 the death of a human being is 15,000, a verdict of $4,000 in the 
 case of a man of sixty-eight, able to save not more than $1,000 a 
 year, is excessive.' 
 
 (e) In an action for causing death, the damages given are a 
 sum much larger than the insurable value of the life; it would, if 
 invested, yield a permanent income much larger than the deceased's 
 earning capacity. Such damages are excessive.* 
 
 When the court considers the damage so excessive as to show 
 passion, ignorance, or prejudice, it is the common practice to 
 give the plaintiff the option of a new trial or of a reduction of 
 the verdict to a sum which the court considers reasonable.' 
 It has always been diflBcult to see how such a practice can be 
 defended except upon consent of both parties. Except in cases 
 
 ' Johnston v. Great Western Ry. Co., [1904] 2 K. B. 250; Philips v. 
 Southwestern Ry. Co., 4 Q. B. D. 406; 5 Q. B. D. 78; 3 Sedgwick on 
 Damages, § 1320. 
 
 ' Peterson v. W. U. Tel. Co., 65 Minn. 18 ; 33 L. R. A. 302. 
 
 ' Benton v. Collins, 125 N. C. 83; 47 L. R. A. 33. 
 
 ' Ribich V. Lake Superior Smelting Co., 123 Mich. 401; 48 L. R. A. 649. 
 
 • Denver & Rio Grande R. R. Co. v. Spencer, 27 Colo. 313; 51 L. R. A. 
 121. 
 
 " English V. Southern Pacific Co., 13 Utah, 407; 35 L. R. A. 155. 
 
 ' Belt V. Lawes, 12 Q. B. D. 356; 3 Sedgwick on Damages, § 1322, and 
 cases cited. 
 
PLEADING AND PRACTICE. 355 
 
 where the court can discriminate the excess beyond the limit to 
 which the jury might fairly have gone, the defendant is as much 
 entitled to a new trial as the plaintiff upon the question of dam- 
 ages, and the practice really amounts to the substitution of 
 an assessment by the court for that of the jury. On a review of 
 the whole subject, the House of Lords has decided that without 
 the defendant's consent it has no jurisdiction to make such an 
 order.^ The same principle should, mutatis mutandis, apply to 
 verdicts set aside for inadequacy. So, the court cannot strike 
 out part of a verdict resting on incompetent evidence and order 
 judgment for the remainder.^ 
 
 On the other hand, modern codes of practice aim at prevent- 
 ing new trials in cases in which the error affects only the 
 amount recovered, unless the error substantially impairs the 
 rights of the party appealing. 
 
 Illustration. 
 
 The verdict is for the loss of property, the evidence showing its 
 value to have been $352.45. The plaintiff recovers $362.45 under 
 erroneous instructions allowing profits, but might have been al- 
 lowed $19.40 as interest. The judgment is affirmed.' 
 
 I 3 
 
 Where the verdict is erroneous on its face and the record 
 supphes evidence by which the error can be eliminated, this will 
 generally be done by the court. This involves no interference 
 with the prerogatives of the jury, and there is nothing that calls 
 for a new trial. 
 
 Illustration. 
 
 The record shows an award of $2,000 for the value of work and 
 labor to a certain date. ' The undisputed evidence of the plaintiff 
 shows only $1,024.60 so expended. The award is modified by remit- 
 ting the excess, and judgment is entered for the amount so corrected.^ 
 
 ' Watt V. Watt, [1905] A. C. 115. Cf. Alabama G. S. R. Co. v. Roberts, 
 113 Terni. 488; 67 L. R. A. 495. 
 
 ' Jayne v. Loder, 149 Fed. 21. 
 
 ' Weick V. Dougherty (Ky.), 3 L. R. A. (n. s.) 348. 
 
 * McConnell v. Corona Qty Water Co., 149 Cal. 60; 8 L. R. A. (n. s.) 
 1171. 
 
356 ELEMENTS OF THE LAW OF DAMAGES. 
 
 The failure to award nominal damages will not in all cases 
 entitle the plaintiff to a new trial. Where nothing substantial is 
 involved, a new trial is not called for, but where the recovery of 
 nominal damages determines and adjudicates valuable rights, as 
 in the case of interference with real property, the refusal to allow 
 them is cause for reversal and a new trial.' 
 
 It has been seen that in tort, liability being established, a 
 question arises whether the negligence is malicious, wanton, 
 or gross, so as to give the jury a discretion as to an award of 
 exemplary damages. It follows from this that where the tort 
 is joint, there may be a recovery of compensatory damages 
 against one or more defendants, and of exemplary damages as 
 well against others.^ 
 
 In such cases it may be asked whether the claim for exemplary 
 damages should be pleaded, the general rule being that it need not 
 be set up. It has been held that this general rule applies even 
 here. The object of the pleadings is to establish liability. The 
 character of the negligence and how far it warrants the jury in 
 going in their discretion are not matters of pleading.* 
 
 Set-off and recoupment are matters into the details of which 
 it is impossible in a hand-book like this to go. It may be 
 enough to say that damages are recouped when they enure to 
 the benefit of the defendant from the cause of action sued upon ; 
 they must be pleaded, though matters strictly in reduction of 
 damages, e. g., damages resting on the doctrine of avoidable con- 
 sequences, need not. Such damages are unliquidated. Set-off 
 is a matter of statutory regulation, which allows only liqui- 
 dated claims of the defendant to be offset against the plaintiff's 
 demahd.^ The principles which govern compensation are of 
 course the same in cases of counterclaim as elsewhere. 
 
 ' Harvey v. Mason City & F. D. R. Co.', 129 la. 465; 3 L. R. A. (n. s.) 
 973. 
 
 ' Mauk V. Brundage, 68 Oh. St. 89; 62 L. R. A. 477. 
 
 = Wilkinson v. Drew, 75 Me. 360. 
 
 * Godkin v. Bailey, 74 N. J. 655; 9 L. R. A. (n. s.) 1134. 
 
APPENDIX. 
 
 AN EARLY ENGLISH CASE INVOLVING 
 DAMAGES. 
 
 Henry de Bodreugam complained by bill, that Thomas le Ar- 
 cedekne tortiously and against the peace of our lord the King, 
 came with force and arms at a certain day, year, and place, and 
 assailed, beat, and wounded him, and his goods, &c. ; and that 
 tortiously and against the peace he took away WilUam, son and heir 
 of B., who was in his wardship, and to his damage, &c. — Middle- 
 ton denied the tort and force, and as to its being against the peace 
 of our lord the King, and the coming, &c. ; and said that Thomas 
 did nothing against the peace. So a jury was summoned. The 
 Inquest said that Sir Ralph de Bloyon, on the same day as that 
 complained of by Henry de Bodreugam, came to the inn of Thomas 
 le Arcedekne, and there they had a long conversation; and after- 
 wards Sir Ralph and Thomas and their followers went to the house 
 of WilUam Beyon, where Sir Henry was. Sir Rauf entered, together 
 with all the others, except Thomas, who did not enter, and re- 
 quested Henry that he would deliver up to them an infant who was 
 in ward to him ; but Henry would not do so. Strife arose between 
 them, and Henry was beaten and wounded, as he complains of 
 having been. — Beumpton. What right had Sir Henry to the 
 wardship ? — The Inquest. None, save the wardship of the in- 
 fant by virtue of his mother having delivered him (to Henry) in 
 consequence of a disagreement between Sir Ralph and the mother. 
 — Beumpton. After the fact, where did they go ? — The Inquest. 
 To the house of Thomas, and there the infant remainea full three 
 days afterwards. — Middleton. Sir, bear in mind that Sir Thomas 
 did not beat or woimd, as stated in the plaint. — Spigonel. If 
 three thieves come to a man's house, and one forces and enterg the 
 house, and the other two stand outside in the meantime, they shall 
 all three be taken and convicted of this, whatever judgment you 
 
358 APPENDIX. 
 
 may think will be passed on the two. — Middleton. It is different 
 in case of burglary or appeal of death of a man, from what it would 
 be in trespass. — Brumpton. Go on now to the damages, and tell 
 us if they carried away any goods or armour, &c. — The Inquest. 
 They did not carry away any chattels, but we assess his damages 
 at one hundred marks. — Middleton. Sir, there are others who 
 committed the trespass, and against whom the plaintiff can recover; 
 we entreat you to take this into consideration. — Brumpton. 
 Know that none of the others shall ever take exception by reason 
 of this judgment, for he has his action against each one, and each 
 one is hable to the whole, and he shall recover his damages against 
 each one severally, if he choose to sue him ; ' and forasmuch as he 
 is convicted of having gone armed in company with Sir Ralph, and 
 his followers entered the house as before-mentioned, thereby it 
 well appears that he was an assenting party to what took "place, 
 and we consider him altogether as a principal, and the court ad- 
 judges that Henry do recover his damages, which are assessed at a 
 hundred marks, and that Sir Thomas do go to prison. — Middleton. 
 Sir Thomas prays mainpernors.^ — Bekrewik. You may agree 
 with the party, and as to what concerns the king we wiU show such 
 favour as the law allows.* — In the course of this case Brumpton 
 said, that a buffet given to a knight or noble was as bad as a woimd 
 given to one of the rabble. — On another day Sir Thomas was 
 brought from prison, and he prayed mainpernors. — Berrewik. 
 Have you arranged with the plaintiff ? — Thomas. No, Sir. — 
 Then Sir Henry and Thomas went out ; and Henry gave Thomas a 
 respite of a fortnight, provided that he should in the mesne time 
 abide by the judgment, and remain under the jimsdiction of the 
 justices. — Berrewik. Know, that if by your consent he be once 
 let out of prison, we shall never send him back again by virtue of 
 this our present judgment; but as to the recovery of damages, which 
 is given by statute,^ if he remain continuously in custody, you shall 
 have execution whenever you please.^ 
 
 * The rule is the same to-day. 
 " Sureties or bail. 
 
 ' This brings out clearly the distinction between the civil and the 
 criminal side of the case. 
 
 * This probably means that the right to execution is statutory. 
 ' Year Book, 30 & 31 Edw. I. p. 106 (a. d. 1302). 
 
INDEX. 
 
 PAGE 
 
 ACCIDENT, unavoidable 13 
 
 ACTION, possession enough to maintain 121, 122, 123 
 
 ACTS, responsibility for 48 
 
 AD DAMNUM 352 
 
 AGENCY • 292 
 
 intervening SO 
 
 tort and contract ill 293 
 
 alternative rule in 293 
 
 AGENT, 
 
 independent 60 
 
 suit by, against principal 294 
 
 AGGRAVATION 149 
 
 AGREEMENT, possession gives right to make and enforce .... 286 
 
 ALTERNATIVE CONTRACTS 232, 250 
 
 ANALYSIS, legal 161 
 
 ARRANGEMENT, order of 9 
 
 ASSAULT 156 
 
 ASSUMPSIT, action of 38, 223 
 
 ASSUMPTIONS, fundamental legal 43 
 
 AVOIDABLE CONSEQUENCES 31 
 
 are remote 73, 76 
 
 expense of avoiding 75 
 
 in contracts of hiring 75 
 
 question for the jury 76 
 
 in cases of wilfiil tort 79 
 
 BAGGAGE 314 
 
 BENEFITS 15, 124-127, 192, 203, 209, 217 
 
 general, special ? • 217 
 
 assessments for 222 
 
 BOND, 
 
 condition of ,233 
 
 penal 232 
 
 BREACH OF PROMISE, mentalsuffering in 327 
 
 CARGO, insurance on 288 
 
 CARRIER, 
 
 said to be an insurer 299 
 
 duty of, arising from public employment 299 
 
360 INDEX. 
 
 PAOB 
 
 CARRIERS 297 
 
 damages against, in Admiralty 310 
 
 CASE, action on the 155 
 
 CAUSATION, chain of, interrupted 43 
 
 CAUSE, proximate, when not regarded as efficient 50 
 
 CAUSE AND CONSEQUENCE 45 
 
 CAUSE AND EFFECT, 
 
 legal view of 41 
 
 illustration of question as to 59 
 
 CAUSE OF ACTION, cannot be spUt 120 
 
 CERTAINTY,, 
 
 rule of 13, 23 
 
 in cases of non-pecuniary injury 23 
 
 illustrations of rule of 24 
 
 rule of, when not applicable 98 
 
 CIVIL DAMAGE ACTS i 71 
 
 CODIFICATION 8 
 
 COMMON COUNTS 224 
 
 COMMON LAW, originally a law of torts 2 
 
 COMMON-LAW PRINCIPLES 13 
 
 COMMON-LAW ACTION, nature of 11 
 
 COMPENSATION, 
 
 must be commensurate with injury 15, 30 
 
 legal not complete 16 
 
 does not extend to all consequences 45 
 
 COMPOUND INTEREST 142 
 
 CONSEQUENTIAL, loose use of term 200 
 
 CONSEQUENTIAL DAMAGES, 
 
 in tort 61 
 
 in contract 61, 65 
 
 under eminent domain statutes 215 
 
 CONSIDERATION, 
 
 failure of 228 
 
 when measure of damages 334, 340 
 
 CONSORTIUM, loss of 102 
 
 CONSPIRACY : 204 
 
 CONSTRUCTIVE TOTAL LOSS 289 
 
 CONTRACT, 
 
 what elements of injury considered in 32, 36, 37 
 
 continuing, entire, divisible 117, 118 
 
 interference with, a tort 211 
 
 damages in . 223 
 
 consequential damages in 225 
 
 assumpsit, general form of action for recovery in 223 
 
 general rule in 225 
 
 expense of preparations to perform 226 
 
 damages on rescission of 228 
 
INDEX. 361 
 
 CONTRACT — continued. pagh 
 
 void under Statute of Frauds . . .......... . 229 
 
 performance of, prevented by defendant 230 
 
 performance of, prevented witliQut fault 230 
 
 when not penal 232 
 
 for railroad construction 240 
 
 CONTRACTS, ■ 
 
 division into implied- and express 223 
 
 contra bonos mores 237 
 
 unconscionable 237 
 
 for transmission of telegraphic despatches 32 
 
 CONTRIBUTION, 
 
 between wrongdoers • 150 
 
 in equity 151 
 
 CONVERSION 183 
 
 no fixed rule in iiction for 185 
 
 market value in cases of 187 
 
 COSTS 34 
 
 COUNSEL FEES 34, 35 
 
 COVENANTS, 
 
 to. repair 333 
 
 in deeds 334 
 
 of seisin 335 
 
 for quiet enjoyment 335 
 
 of warranty 335 
 
 against encumbrances 337 
 
 reasons for rule as to 340 
 
 to remove existing enciimbrance 340 
 
 to pay all claims against land 340 
 
 to save harmless 340 
 
 CRIMINAL CONVERSATION 174 
 
 DAMAGE, 
 
 early method of ascertaining 2 
 
 either pecuniary or non-pecuniary 39 
 
 when gist of action 49 
 
 particular . . . . • _ 153 
 
 when imported ' 350 
 
 DAMAGES, 
 
 interest in subject of, modem 1 
 
 rules as to, of recent growth 1 
 
 rules of '. 3 
 
 effect of modem procedure on 4 
 
 development of rules of 4 
 
 germ of rule as to ... I . ^ 6 
 
 growth of law of 8 
 
 codes of 8 
 
 study of 11- 
 
 affected by motive 14 
 
362 INDEX. 
 
 DAMAGES — contimted. page 
 
 pecuniary 20 
 
 two great heads of 21 
 
 must come from cause of action 19, 20, 30, 36 
 
 alternative rules of 21 
 
 hypothetical 24 
 
 speculative 24 
 
 most comprehensive rule of —. 30 
 
 no recovery for remote 31 
 
 two conflicting tendencies as to 37 
 
 direct, proximate, consequential, or remote 42 
 
 direct , . . 46 
 
 proximate 45 
 
 remote .... - 31, 36, 46 
 
 consequential 46 
 
 direct, always recoverable 47 
 
 direct, involved in statement of cause of action 47 
 
 when coterminous with liability 49 
 
 within the contemplation of the parties 65, 226 
 
 measure of, when not affected by nature of interest 286 
 
 general, imported by cause of action 350 
 
 temperate 350 
 
 DAMNUM ABSQUE INJURIA 18,220 
 
 DEATH BY WRONGFUL ACT 176 
 
 double action for 177 
 
 DEBT, 
 
 action of 38, 232 
 
 on bond 38, 232 
 
 extinguished by conveyance of land 281 
 
 DECEIT 204 
 
 DECEPTION followed by damage 18 
 
 DELAY, liquidation of damages for 246 
 
 DETINUE 190 
 
 DISCOMFORT 100 
 
 DISCRETION OF JURY, control of court over 148 
 
 DOMESTIC RELATIONS 153, 169 
 
 actions affecting 172 
 
 DUTIES, moral and legal , 16 
 
 EJECTIONS' FIBM^,vmt oi 206 
 
 EJECTMENT 206 
 
 at first not fictitioiis 207 
 
 supplants peal actions . 207 
 
 modern statutory action of 208 
 
 EJECTMENT SUIT, costs of 209 
 
 ELEMENTS OF INJURY, not necessarily pecuniary 20, 99 
 
 EMINENT DOMAIN 215 
 
 ENTIRE DAMAGES 117 
 
INDEX. 363 
 
 PAOB 
 
 ERROR, modem doctrine of 4 
 
 EXCESSIVE DAMAGES , . us 
 
 EXCLUSION, rules of 30 
 
 EXEMPLARY DAMAGES 85 
 
 not allowed in all jurisdictions 87 
 
 reasons for giving 88 
 
 responsibility of master for 89 
 
 not mitigated by result of prosecution 89 
 
 in case of gross negligence 91, 94 
 
 nominal damages as foundation for 92 
 
 right to, not property 96 
 
 FACT AND LAW, effects of separation of 4 
 
 FALSE IMPRISONMENT 167, 168 
 
 FALSEHOOD, no action for, without damage 165 
 
 FIRE, communication of 58 
 
 FORCE, overpowering 60 
 
 FORMS OF ACTION, effect of abolition of 7 
 
 FRAUD 204 
 
 FREIGHT, insurance on 288 
 
 FRIGHT, and proximate cause 114 
 
 GOODS, carriage of 298 
 
 HADLEY V. BAXENDALE, 
 
 rule in 65 
 
 notice under rule in 67 
 
 HIGHER INTERMEDIATE VALUE, rule of 187 
 
 INADEQUATE DAMAGES ' 148 
 
 INANIMATE SUBSTANCES, escape of 20 
 
 INCONVENIENCE 100 
 
 INDEMNITY, 
 
 contracts of 276 
 
 between principal and surety 282 
 
 INFANCY, no defence in tort 163 
 
 INJURIA SINE DAMNO 19 
 
 INJURIES, pecuniary and non-pecuniaty 98 
 
 INJURY, 
 
 two general heads of 21 
 
 must proceed from cause of action 30 
 
 compensation must bfe commensurate with 30 
 
 elements of 20, 98 
 
 limitations of 116 
 
 limitations of, in title or interest 120 
 
 INSANITY, when no defence in slander 162 
 
 INSULT, does not constitute assault 163 
 
364 INDEX, 
 
 INSURANCE, PAGE 
 
 against fire 283 
 
 against fire, case of open policy 284 
 
 rights of mortgagee and mortgagor 286 
 
 marine 288 
 
 on lives 291 
 
 INSURER, 
 
 right of, to rebuild or repair 284 
 
 measure of damages against 286 
 
 INTEREST 135 
 
 original rule as to 136 
 
 governing principle as to , 137 
 
 is the value of the use of money 138 
 
 discretion of jury as to 138 
 
 on liquidated demands 138 
 
 initial point for ' 139 
 
 in the courts of New York 140 
 
 on overdue paper 140 
 
 not allowable when defendant not in default 141 
 
 rules as to . 142 
 
 in suits for recovery of land 209 
 
 JUDGMENT, evidence of damages as against surety 282 
 
 JURY, 
 
 original nature of 1 
 
 arbitrary power of 2 
 
 modern functions of 3 
 
 control of, in tort 39 
 
 discretion of, in tort 38, 40 
 
 discretion of, no longer arbitrary 40 
 
 proximate cause, question for the 56 
 
 judge of value 134 
 
 LABOR, right to 212 
 
 LAW MERCHANT 288 
 
 LAWS, conflict of 344 
 
 LIABILITY, 
 
 connection of, with damages 43-46 
 
 existence and extent of 48 
 
 not dependent on defendant's foresight 49 
 
 in tort, joint and several 150 
 
 limitation of 253, 311 
 
 LIBEL 161 
 
 LIFE, expectation of . . 158 
 
 LIQUIDATED DAMAGES 232 
 
 canons of interpretation as to 237 
 
 LITIGATION, expenses of 34, 36, 209 
 
 LYNCH V. KNIGHT 100 
 
INDEX. * 365 
 
 PAGE 
 
 MALICE 161 
 
 MALICIOUS PROSECUTION 167 
 
 MANUFACTURE, contracts of 268 
 
 MARINE INSURANCE, 
 
 open policy- 284 
 
 valued policy 284 
 
 MARKET, the, usual measure of value 128 
 
 MARRIAGE, 
 
 value of 325 
 
 loss of 66 
 
 MEASURE OF DAMAGES, abstract form of 15 
 
 MENTAL SUFFERING 100 
 
 generally excluded in contract 32 
 
 varieties of 105 
 
 in tort and contract 105 
 
 conjectural 106 
 
 result of rigid rule as to 109 
 
 and proximate cause 112 
 
 in actions of assault 157 
 
 MESNE PROFITS, action for 210 
 
 MIND, condition of, xmimportant, when 49 
 
 MISTRIAL, rules as to 4 
 
 MITIGATION 149 
 
 MONEY, 
 
 rule in actions for recovery of 33, 36 
 
 agreements to lend 279 
 
 MOTIVE, . , 
 
 as affecting liability 13 
 
 affects damages 14 
 
 imputation of 91 
 
 when exemplary diamages are claimed 93 
 
 NEGLIGENCE, 
 
 contributory 31, 73 
 
 degrees of 94 
 
 gross, what is ...... ., 95 
 
 exemption from liability for 300 
 
 NEGOTIABLE INSTRUMENTS 257 
 
 NEGOTIABLE PAPER, 
 
 payment in 281 
 
 relations of parties to 283 
 
 NEW YORK ELEVATED RAILROAD CASES 203. 
 
 NOMINAL DAMAGES 19,81 
 
 in contract 83 
 
 in tort 83 
 
 in various classes of actions 83-85 
 
 NOTICE, by surety ■ 282 
 
 NUISANCE 200 
 
366 INDEX. 
 
 PAOB 
 
 OFFICERS, actions against 84, 193 
 
 PAIN 99 
 
 PAKTIAL LOSS 289 
 
 PARTIES, damages within contemplation of 65, 226 
 
 PASSENGER, suit by, tort or contract 312 
 
 PASSENGERS, carriage of 297 
 
 PENALTY, when limit of recovery 234 
 
 PERFORMANCE, preparations for 230 
 
 PERILS OF THE SEA 289 
 
 PERSON AND FAMILY 155 
 
 PERSONAL INJURY 157 
 
 PERSONAL PROPERTY, contracts for delivery of 259 
 
 PLEADING AND PRACTICE 349 
 
 POLICY OF INSURANCE, open or valued 284 
 
 POSSESSION OF REAL PROPERTY, action for 206 
 
 interest in 209 
 
 POWERS UNDER STATUTES, 
 
 compulsory 220 
 
 permissive 220 
 
 distinction between, as to damages 220 
 
 PRE-ASCERTAINMENT of damages 249 
 
 PRICE 128, 131 
 
 PRINCIPAL, suit by, against agent 293 
 
 PRINCIPAL AND SURETY 281 
 
 PRIVACY, right of 168 
 
 PRIVILEGED COMMUNICATIONS 161 
 
 PROCEDURE, reformed, effect of 7, 8 
 
 PROFITS, allowance of 24 
 
 PROMISE, 
 
 breach of , 32, 325 
 
 breach of, survival of action for 326 
 
 PROPERTY, total destruction of 24 
 
 PROSPECTIVE DAMAGES 117,118 
 
 PROXIMATE CAUSE, 
 
 rule of 13, 41 
 
 involves two questions 41 
 
 when more than one 50 
 
 a question for jury 56 
 
 not affected by character of wrong 56 
 
 in contract 61 
 
 in insurance 61 
 
 in marine insurance 289 
 
 PUBLIC OFFICERS, actions against 84, 193 
 
 QUANTUM MERUIT 231 
 
INDEX, 367 
 
 REAL ACTIONS, paqh, 
 
 in New England 208 
 
 decay of 206 
 
 REAL ESTATE, 
 
 contracts affecting 332 
 
 interference with. 197 
 
 New York rule as to sales of 245 
 
 REINSURANCE 288 
 
 REPLEVIN, 
 
 history of 190 
 
 modem use of 191 
 
 RES 4I>Jt7D/CAT4, covers questions of damage 117 
 
 RESPONSIBILITY, in tort, extent of 50 
 
 RIGHT, infringement of, imports damage 19 
 
 RIGHTS and duties, legal 16 
 
 RULES, in our system 4 
 
 SALES 259 
 
 payment in advance » . . . . 262 
 
 time of breach , 266 
 
 refusal to perform in advance 266 
 
 of real estate 341 
 
 SEDUCTION 173 
 
 gist of action for 60, 174 
 
 mutual fault in 328 
 
 SERVANT, enticing . . .' 214 
 
 SERVICE, 
 
 actions for loss of JJO 
 
 contracts of 255 
 
 SHIP, insurance on 288 
 
 SINGLE RECOVERY, rule of 118 
 
 SLANDER 161, 163 
 
 SPECIAL DAMAGE 152,201 
 
 SPECIAL DAMAGES 152 
 
 must be pleaded 362 
 
 SPECIFIC PERSONAL PROPERTY, recovery of 190, 192 
 
 SPOKEN WORDS, when action lies for 163-166 
 
 STATUTORY DAMAGES 10 
 
 STOCKS, conversion of 189 
 
 SURETY, consequential damages recoverable by 282 
 
 TAKING PROPERTY, under eminent domain statutes . . . 216-219 
 
 TELEGRAPH AND TELEPHONE . 315 
 
 telegraph companies not common carriers 315 
 
 consequential damages 316 
 
 mental suffering 317 
 
 TELEGRAPHIC DESPATCHES, two classes of 316 
 
368 INDEX, 
 
 TORT, PAGE 
 
 rule in 50 
 
 discretion. of jury in 8, 148 
 
 anticipation of consequences in 49 
 
 consequential damages in 61 
 
 notice of no importance, in 61 
 
 damages in ..,.,.. 146 
 
 rules in actions of 154 
 
 TORT AND CONTRACT 37 
 
 historical development of 37 
 
 basis of classification 9 
 
 natural line between 39 
 
 difference tetween 48 
 
 fundamental distinction between 63, 71 
 
 distinguishing mark between 147 
 
 TOTAL LOSS 289 
 
 TRADE, right to 212 
 
 TRADE UNIONS, remedies against 213 
 
 TREES, injury to 199 
 
 TRESPASS, history of 155 
 
 TROVER, 
 
 consequential damages in 61 
 
 varying rules in 149 
 
 UNDERTAKING, statutory 235 
 
 USE, value of 130 
 
 VALUATION, liquidation by 249 
 
 VALUE . 128 
 
 intrinsic 129 
 
 of contract 130 
 
 higher intermediate 187 
 
 at place of destination 299 
 
 VESSEL, insurance on 288 
 
 WAGER POLICIES, illegal 286 
 
 WARRANTY 270 
 
 consequential damages on breach of 271 
 
 WILL, 
 
 independent, intervention of 32 
 
 freedom of, in law 43 
 
 WORDS, when actionable 164 
 
 WRIT, object of 155 
 
 WRIT OF ENTRY 208