The law requires the injured party to use all reasonable means to reduce his damages to a 'minimum ; Warren v. Stoddart, 105 U. S. 229, 26 L. Ed. 1117 ; D. A. Tompkins Co. v. Oil Co., 153 Fed. 817 ; and where the suit is based on the fault of the other party in confiding in his representations and promis es, the burden is upon him to show from what time the other should have abandoned his faith and set about retrieving his error and minimizing the damages ; Kentucky Dis tilleries & Warehouse Co. v. Lillard, 160 Fed. 34, 87 C. C. A. 190. The rule of Warren v. Stoddart, supra, requiring reasonable effort to reduce damages means merely reasonable action, and not such as upon after-thought defendant may show would have been more favorable ; The Thomas P. Sheldon, 113 Fed. 779.
Where the plaintiff sues for breach be fore the time of complete performance, he is entitled to compensation for loss during the continued breach, less any abatement of which he ought reasonably to have availed himself ; Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953.
As to mental suffering, see that title.
With regard to the measure of damages, the same principles are, to a great extent, applicable to cases of contract and tort; Poll. Torts 529 ; 9 P. Div. 113. Where the action is for breach of contract, the damages are limited to what may reasonably be con sidered to have been contemplated by the parties at the time of making it as likely to arise from a breach ; Bradley v. R. Co., 94 Wis. 44, 68 N. W. 410. They may Include, however, gains prevented, as welt as losses sustained, if certain, and reasonably to be expected ; Western Union Telegraph Co. v. Wilhelm, 48 Neb. 910, 67 N. W. 870. They are measured by the loss which results from the breach and not the sum of money or property involved in the transaction; [18971 1 Q. B. 692. As a general rule, the contract itself furnishes the measure of damages.
action of tort based upon negligence in the performance of a contractual obliga tion without malice, the damages would be substantially the same as for breach of con tract under the same circumstances ; Fererro
v. Telegraph Co., 9 App. D. C. 455.
There are dicta to the effect that a more liberal rule of damages should be applied in cases of tort than of contract ; Walsh v. Ry. Co., 42 Wis. 23, 24 Am. Rep. 376; Allison v. Chandler, 11 Mich. 542; but they are con trary to the general current of authority which is in favor of applying the same prin ciples to both classes of cases ; Baker v. Drake, 53 N. Y. 211, 216, 13 Am. Rep. 507 ; Sedg. Meas. Dam. § 429, note a.
'While the rule which affords the measure of damages is to be supplied by the court, the amount is a question for the jury, and unless the damages are so excessive as to lead to the conclusion of passion or prejudice on the part of the jury, the court cannot in terfere with their verdict ; Dwyer v. R. Co., 52 Fed. 87.
Damages should not exceed the amount claimed ; but cases have been known in which the verdict was in excess of the amount claimed, and the court has amended the statement of claim to enable it to enter judgment on the verdict ; Poll. Torts 180; but this is said to be an extreme use of the of the court; id.; 43 Ch. Div. 327. Where there is uncertainty as to the meas ure of damages, the rule is to give the low est sum; Appeal• of Jones, 62 Pa.. 324.
Estimates of value made by friendly wit nesses, with no practical illustrations to sup port them, are too unsafe, as a rule, to be made the basis of a judicial award. The Conqueror, 166 U. S. 134, 17 Sup. Ct. 510, 41 L. Ed. 937.
In an action for Injuries, an instruction not to award damages for hysteria, not di rectly caused by the accident, was properly refused as it might restrict the jury to dam ages directly caused by the accident, while there might properly be a recovery for in direct damages which were its natural con sequences; Metropolitan St. Ry. Co. v. Hud son, 113 Fed. 449, 51 C. C. A. 283.
The measure of compensation allowed as damages has been somewhat definitely fixed, as to many classes of cases, by rules of de cision, many of which are important and well established.