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special circumstances, then such special damages must be supposed to have been contemplated by the parties to the contract, and is recoverable.? A further rule is implied, viz., that damage which cannot be considered as fairly and naturally arising from breach of contract under any given circumstances is not recoverable, whether those circumstances were or were not known to the person who is being charged.' SECTION 13. BONDS, LIQUIDATED DAMAGES AND AL

TERNATIVE CONTRACTS. Formerly in a suit on a bond the measure of damages was the face of the bond; relief against such damages could only be obtained in equity and even these was originally only granted in cases of fraud, extremity or accident. At the present time the limit of recovery is the actual damage. If, however, the amount of the bond is in the nature of liquidated damages, the amount of the face of the bond can be recovered,

· The statement of the rule is open

to criticism, and, unexplained, is sometimes misleading. “What is meant by the words, 'in contemplation of the parties?' It would seem that contracting parties-certainly honest ones do not contemplate the breach of their contracts when they enter into them, and henco cannot contemplate the consequences of a breach.

We are aware that the language or phrase we have been criticising has been repeated and re-repeated, in many judicial opinions. It has come to almost a stereotyped phrase; so general that it may appear to be temerity in us to question its propriety. We think, however, it is in itself inapt and inaccurate, and that its import has been greatly

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and frequently misunderstood. It is often employed in apposition to, or as the synonym of, that other quality, clause, the natural result of,' or 'in the usual course of things.' We think this is a great departure from the sense in which Baron Alderson intended it should be understood. Altogether, we think it obscure and misleading, and that an attempt to install it as one of the canons has caused many, very many,

erroneous rulings. • Hale on Damages, p. 55, 56. • Whitfield vs. Levy, 35 N. J. L.,

149 (citing Cary Rep. 1; Harri

son L. tracts, 431). • "Where the precise sum is not

the essence of the agreement, the quantum of damages may be assessed by the jury; but, where the precise sum is fixed Pa., 90; Hurd' vs. Hubbell, 26 Burr, 2225, 2229. For a dis

The measure of damages for the breach of an alternative contract is compensation for the least beneficial alternative.



In the case of a breach of a contract to deliver property the measure of damages is generally held to be the value of the property, or if the goods have not been paid for, the difference between the contract price of the goods and what they can be purchased for elsewhere."

Where property is wrongfully converted to the use of another, the measure of damages is generally held to be the value of the property at the time of the conversion, with interest from the date of such conversion. In the case of goods of a fluctuating value some courts have held the measure of damages to be the highest intermediate value between the time of the conversion and the trial."


In an action upon a negotiable instrument, to which there is no good defense, the measure of damages is the face of the paper with legal interest from the time of the breach.

and agreed upon between the ? A. D. Piffer, etc., Mfg.Co. vs. Luparties, that very sum is the

cas, 112 N. C., 337, 17 S. E., ascertained damage, and the

174, 19 L, R, A., 682. jury are confined to it.” Lord • Sutton vs. Dada, 15 Colo., 98, Mansfield in Lowe vs. Peers, 4

Conn., 389; Riley vs. Martin, cussion of liquidated damages, 35 Ga., 136.

see Volume VII, Subject 20. • Romaine vs. Van Allen, 26 N. Y., o West Vs. Pritchard, 19 Conn.,

309, 212; Safety vs. Gilmore, 21 20 Including interest up to the time Iowa, 588; Smith vs. Berry, 18

of the breach according to the Me., 122,

terms of the instrument.



MARRIAGE. In an action for breach of promise of marriage, the amount of the verdict is in the discretion of the jury. All circumstances in aggravation or mitigation are admissible in evidence. Exemplary damages may be given."

In Coolidge vs. Neat," the following set of instructions were held proper:

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 affections.

(3) Mortification and distress resulting from the defendant's refusal to fulfill 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 feelings, and probable solitude which would result from the desertion.

SECTION 17. TELEGRAPHIC DESPATCHES. Telegraphic companies in the absence of a special contract are liable for all damages resulting as the natural result of delay or mistake in transmitting a message.

Thus in the case of Bartlett vs. Western Union Telegraph Co.,' a despatch was left by the plaintiff with the defendant to be sent to Chicago directing the purchase of 10,000 bushels of corn. As transmitted the message directed the purchase of 1,000 bushels. u Sedgwick on Damages, p. 306. u 129 Mass., 146.

18 62 Me.,


Vol. IV.-14.

The mistake being discovered, the balance of 9,000 bushels was purchased by the plaintiff but at ten cents more per bushel than he could have bought for at the time of the delivery of the original despatch. Damages ere awarded for $900 and interest.

The mental suffering of the plaintiff, caused by the delay or failure to receive the message, may be an element in determining the award of damages.

A telegraph company may make reasonable regulations and it is generally provided that unless a message is repeated," the company is liable only to an amount equal to the cost of the message.


The following set of rules given by a recent writer on the subject of Damages,' contain all the leading principles favoring the awarding of damages in actions of tort:

"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.

In all cases, so far as the effects of the injury upon rights of property or contract can be separately estimated, the extent of recovery is a matter of law.

In all cases involving other elements of injury the amount of the verdict is in the discretion of the jury.

Circumstances of aggravation are admissible to enhance and circumstances of mitigation to reduce the verdict.

* At an additional charge, generally,

of fifty per cent. of the cost of the unrepeated message.

us Sedgwick on Damages, pp. 147,


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.

Such a case occurs whenever the verdict clearly falls short or is clearly in excess of an amount which all the heads of damage taken together show to be reasonably recoverable."

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time, 20

No precise rules can be fixed for the measurement of damages caused by personal injuries. 16

The damages recoverable will depend upon the circumstances in each particular case, and must be very largely left to the discretion of the jury.17 The damages awarded, however, should be on a fair basis of compensation for the injury sustained.18

In determining the amount of damages in such case the jury may take into consideration the physical and mental suffering, either past or future,19 loss of

expenses incurred," and impairment of earning capacity. Where it appears that plaintiff's right arm has been rendered useless by the accident, it has been held proper to instruct the jury to take into 18 Chicago, etc. R. Co. vs. Warren,

largely to the discretion of the 108 Iú., 538; Furnixh vs. Miss

jury, they are not at liberty to souri Pac. R. Co., 102 Mo., 669,

give any amount they please. 155 W., 315, 22 Am. St. Rep., 10 Ball vs. Mabry, 91 Ga., 781, 18 S.

E., 611; Townsend vs. Pasla, 17 Morris vs. Chicago, etc., R.Co., 45

41 Kan., 591, 21 Pac.,

596, lowa, 29; Pennsylvania R. Co. Memphis, etc., R. Co. V8. Whitvs. Allen, 53 Pa. St., 276.

field, 44 Miss., 466, 7 Am. Rep., 1 Wabash, etc., R. Co. vs. Morgan, 132 Ind., 430, 31 N. E., 661, 20 Braithwaite vs. Hall, 168 Mass., N. E., 85, 13 Cyc.,

38, 46, N. E., 398. 137. In Waldhien vs. Han- » Sanford vs. Augusta, 32 Me., 536; nabal,etc.,R.Co., 87, Mo. 37, it

Huleban vs. Green Bay,

etc., R. was held that while the amount

Co., 68 Wis., 520, 32 N. W., 529. of damages in an action for per- 29 Blackman vs. Garden, etc., Bridge sonal injuries must be left

75 Me., 214,


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