MEASURE OF DAMAGES, the body of rules which governs the amount of pecun, iary compensation axvarded by courts of justice for violation of personal or property rights. In its most extended sense it might he said to cover almost the whole ground of le„.0n1 procedure; hut is used not to represent inquiry as to what cases require the award of damages, but rather, as to what limit sholild be placed on the award in certain cases. The rules apply to common law rather than to equity, as the former is, in oTneral; remedial in its nature, and the latter preventive, offering injunctions, specitic relief, etc, In early English law the question of damages was left to the jury, while in countries whose jurisprudence is founded on the civil law, the question was left to the discretion of the magistrate; but common law declares that the compensation must be fixed by those legal rules which form the 3feasure of Damages; though these are not as yet free from contradiction and discrepancy. " The general rule," says Story, "is that whoever does damage to another, is liable in damages to the extent of that injury; it matters not whether it is to the property or person or rights or reputation of another." But niDt every loss gives right to legal relief; the injury must be legal. Thus injury to moral sentiments has no remedy. Suit cannot he sustained by a private individual for a public wrong, as a highway nuisance, unless there be some element of special injury to him. Injury may consist in direct or indireet pecuniary loss, value of time, expenss such a.s costs and counsel fees, mental suffering and the sense of wrong or insult arising from the intention to vex or annoy. But the law will reftise to give compensation for any of these kinds of injury except direct pecuniary loss and the costs of the suit, unless,. indeed, there be present the element of malice and willfulness; or, as has been said, it will divide the loss, discriminating between that which must be borne by the offending party and that which must be borne by the sufferer; but where there is fraud, malice, or gross nee!gence, vindictive or exemplary damages will he given. In quantity, the dam ages naay be nominal or substantial; nominal when there is injuria sine danino, legal injury but no actual loss. The giving of nominal damages often suffices to establislb rights or titles, as in action for trespass on lands. It is well settled in American law that where there is any invasion of right there must be at least nominal damages, and it is often the duty of the court to so instruct the jury. In such cases care should be taken not to hold the defendant for costs, if the action is trifling and tinged with malice.
What may be included under consequential damages? Usually the consequences must be direct and immediate; in the words of the N. Y. supreme court, " must be the• fair natural and legal result of the breach of the defendant's agreement. Prospective or continuin,g profits are usually excluded, if not very clearly the natural result." Thus in a. suit for price of a steamer, the profits on trips she might have made were disallowed. But when p•.,00ds have deteriorated in market value the courts will give compensation for the loss. If there is no element of contingency and the profit was certain and actual, it will he admitted. In torts, also, the damages are confined to direct consequences, but incidental expenses are somethnes allowed. In a case where an anchor was warranted, it was held that the holding of the cable was of the essence of the warranty, and it was. even implied that if the ship were lost hy the imperfection of the anchor, a suit would lie for its value. If an act is illegal or mischievous of itself the courts will go far in con struing the law of consequential damages. If a plaintiff could have avoided the injury without loss or danger he cannot recover; mid this law of contributory negligence is very itnportatt in torts such as nuisance or collision. As to award of costs, there is some conflict; but they usually go with the verdict, unless the suit be vexatious and won on mere.technical rights. Though, as a rule, damages are only allowed for injury up to the time action is brought, yet in many cases of contracts where successive suits are impossible from the entirety of the contract, and in torts and trespass, greater latitude is allowed. If, in a continuing agreement the violation has, of necessity, entailed loss after the bringing of action and if the loss is certain and ascertainable, prospective damages will he given. And in torts the averment may be of loss probable; as, in case of injury by negligence of a railroad, it may be set forth that plaintiff's health is permanently injured. In case of a contract to pay money, there can be no consequential damage beyond legal interest; if it he to do or not do some act, the law will consider only those consequences which seem to have been in the contemplation of the parties at the time; and in case of torts in which no fraud or malice enters, only natural and proximate consequences are considered. In regard to real estate, it was formerly thought to he in
the very nature of actions for possession that damages did not lie; but there has been much statutory enactment on the subject, and damages are now generally allowed in actions of ejectment •and dower. In the first, the damage in the actual ejectment is almost always nominal; hut, though the improvements pass with the land, mesne profits are given to the plaiatiff to the extent of the annual value, as well as costs and some times interest and compensation for his trouble. Iu New York, for instance, interest is allowed on rents, hut all eguit.able defenses, are admitted. In dower the English law of damages is governertby the statute of .31erton, and it is generallyheld here that damages accrue after a husband's death and are to he measured by one-third the 'nestle profits: but the usual course in dispossession from dower land is by action of ejectment, the old writ of dower having fallen in disuse. Without going into details as to the measure of damages iu cases of trespass, waste, nuisance, and real covenants, it may be said that with few exceptions the general rule of natural relation and compensation for actual injury governs. In contracts, many and important classes are presented, such as negotiable paper, insurance, sale and warranty of chattels, agency and suretyship. In all these the jury has lost much of the power possessed in former times, and it is well settled that it is for the court to determine the measure of damages and for the jury only to determine the amount under that rule. It is dear that the motives of the contracting parties do not fix the rule, thoucth in breach of promise of marriage the jury may take all facts into consideration, as it is impossible to formulate a law of damages which will. cover the peculiar injury. Other exceptions exist; but, where the contract is not uncon scionable, it furnishes the measure of damage itself. Contract price is recoverable and actual loss is the basis of compensation, so that quantum meruit applies. With all nego tiable paper the measure is easily and arbitrarily fixed by the legal rate of interest. Mariue insurance has special laws arising from the nature of the peculiar doctrines of general average and total and partial loss; in fire insurance the actual loss is the measure; while in life insurance no actual loss need be shown by the assignee of a policy. In con tracts for the sale of personal property, the vendee after breach of contract by the vendor can, by the usual rule, recover only the difference between the contract price and that on the day fixed for delivery; but it has been held in cases involving stock transac tions that the vendee can recover the highest price reached by the stock in the interval. The vendor can recover full price as against the vendee on refusal of the latter to receive the goods, even though they are not actually deliyered. Warranty of personal property is governed as to damages by the actual value and not the contract price, if there be no fradillent representations. The principle has been disputed but is now welt settled in this country. A surety must pay the claim he guarantees before he can sue his principal, and his damage is measured by the amount, interest, and costs. An agent can. be sued by his principal for the whole loss incurred by his negligence, even though not the direct consequence act; and in such cases cannot offset his commission. In actions. against common carriers indemnity is afforded for actual loss at time of injury; the value of goods destroyed is estimated at the place of destination and interest is reckoned under the law of that state. Where transportation of a passenger is refused, after contract to. , do so, the injury by loss of time and wages or profits is the measure. But the loss must be actual; thus the rate of wages in the plaintiff's trade at the place of destination was.. admitted as evidence of probable loss but not to set the measure of damage; and courts have even said that the expenses of an illness following but not caused by railroad deten tion and prolonging such detention might be included in the damages, so far as they were in excess of what they would have been elsewhere. Where a telegraph company undertook to transmit a messa-ge and, by their negligence, plaintiff lost a chance to col lect an otherwise worthless debt, the corporation was held to be a common carrier and liable. Other decisions are averse to this doctrine. Dispute on the point is usually avoided by provisions made part of the contract, disclaiming such responsibility. If the company is a common earlier it is, in effect. an insurer, is bound to use more more than ordinary care, and liable for consequential damages.