Damages recoverable in

of warranty.

defendant for damages and for loss of the profits which they would have made by performance of the contract. It was held that the plaintiff was entitled to recover (c).

In actions for the breach of a warranty (d) the meacases of breach sure of damages must depend considerably upon the fact of the article having been returned or not. In previously treating of warranties it has been pointed out that in some cases the vendee has an absolute right to return the article warranted, whilst in other cases he has no right to do so, but is confined to his remedies other than this (e). If the vendee, having the right to do so, does return the article, or though not having the right, yet does so with the assent of the vendor, and has not before paid the price, if he has not suffered any special injury he will be entitled to nominal damages only, and if he has paid the price and suffered no injury beyond that, then the measure of damages will be the price paid (ƒ). If any special injury has however resulted, then, in all cases where the article has not been returned, the measure of damages is the difference between the value of the article had it not possessed the defect warranted against but been as it should be, and the actual value of the article with the defect (g); and the best evidence of the value of the article with the defect must necessarily be the sum which it has produced on a re-sale.

Damages recoverable

against a carrier of goods.

If a carrier of goods (h) does not deliver them within the proper time, and the consignee therefore refuses to receive them, or if by the neglect of the

(c) Hydraulic Engineering Co. v. McHaffie, L. R. 4 Q. B. (Apps.) 670 ; 27 W. R. 221.

(d) As to what will amount to a warranty, see ante, p. 92.

(e) See ante, pp. 95, 96.

(f) Mayne on Damages, 162.

(g) Dingle v. Hare, 7 C. B. (N.S.) 145; Mayne on Damages, 162; Broom's Coms. 637, 638.

() As to carriers generally, see ante, pp. 105-112.

carrier they are lost, the damages recoverable will be the true value of the goods, and also any further damages naturally resulting from the breach of the contract. What will be deemed the natural consequences of the carrier's neglect has already been sufficiently considered (i).

recoverable

passengers.

With regard to actions against a carrier of passen- Damages gers for some personal injury caused by the defend- against a ant's negligence, the measure of damages consists in carrier of the substantial injury the plaintiff has suffered by the expenses of his cure, his loss of time and consequent injury to his business, and his inability to continue that business and the general pain and discomfort he has been put to (k), and the fact of the plaintiff having through an insurance received compensation for his accident cannot be set up by the defendant in mitigation of damages (1). With regard to actions under Lord Campbell's Act (m) the rule has been stated to Particularly in be "that the damages should be calculated in reference Lord Campto a reasonable expectation of pecuniary benefit, as of bell's Act. right or otherwise from the continuance of the life” (n), which means that the jury cannot speculate on mere probabilities of advantages that might possibly have ensued to the persons for whose benefit the action is brought, nor can they look to the grief caused such persons by the death, but they may consider the fair loss of comforts and conveniences to such parties through the death, for this is fairly within the pecuniary loss for which the action is brought (o). And in calculating this pecuniary loss the jury may consider

(i) See ante, p. 402, et seq.; and case of Hadley v. Baxendale there quoted and referred to, and remarks thereon.

(k) Mayne on Damages, 404, 405; and see as to how far this principle will be extended, Armsworth v. South Eastern Ry. Co., 11 Jur. 760; Phillips v. London and South Western Ry. Co., L. R. 5 C. P. D. 280; 49 L. J. C. P. 233; 42 L. T. 6.

(1) Yates v. White, 4 B. N. C. 283.

(m) 9 & 10 Vict. c. 93, as to the provisions of which, see ante, pp. 374, 375.

(n) Per cur. Franklin v. South Eastern Ry. Co.. 3 H. & N. 211. (0) Franklin v. South Eastern Ry. Co., 2 H. & N. 211.

actions under

Damages recoverable on fire and life policies.

When a plaintiff,

any reasonable probabilities of pecuniary benefit capable of being estimated in money, e.g. that the deceased who had been in the habit of contributing towards the support of a relative, for whose benefit the action is brought, would have continued to have done so (p). It has been held that the jury cannot give damages in respect of the funeral expenses, there being nothing in the act to justify their so doing (q).

From the very material distinction in the nature of the contracts of fire and life assurance (r) arises the difference in the damages recoverable in each, the damages being in the former only the actual loss incurred, but in the latter the whole sum assured to be paid.

Where a person is employed to do certain work, and though he has he does not do it as he contracted to, but does it in some different way, though he cannot of course recover the contract price, yet if the defendant has accepted what he has done he is entiled to recover upon a quantum meruit, i.e., as much as it deserves (s).

not done work as contracted for, may sue upon a quantum meruit.

Damages recoverable

trespass, or other injury to land.

In an action for a trespass or other injury to land, in actions for the general measure of damages is the diminished value of the land (†); and in cases of trespass where no real injury has been sustained, and there are no special circumstances of aggravation, nominal damages only will be given. If, however, there are any circumstances of aggravation, or the trespass has been committed after notice not to trespass, here exemplary damages may be given quite beyond any real injury that the plaintiff has suffered (u).

(p) Dalton v. South Eastern Ry. Co., 27 L. J. (C.P.) 227; Pym v. Great Northern Ry. Co., 2 B. & S. 767; 4 B. & S. 396.

(9) Dalton v. South Eastern Ry. Co., supra.

(r) As to which see ante, pp. 174, 175.

(s) Ante, p. 223.

(t) Jones v. Gooday, 8 M. & W. 146.

(u) Merest v. Harvey, 5 Taunt. 442; as to trespass to land, see ante, pp. 284-291.

recoverable in

respect of

In cases of nuisances where no substantial injury Damages has been done, if it is the first time of an action having been brought in respect of the nuisance, nominal nuisances. damages generally will only be given; but if it is a second or any further action for the continuance or reoccurrence of the same nuisance, exemplary damages may be given with a view to compelling its removal (x).

In any action the plaintiff may also obtain an injunc- When a rever. sioner may obtion, either in addition to or instead of damages (y). tain damages. Not only the actual occupier of lands, but also the reversioner may obtain damages if the nuisance is of a permanent nature (2).

recoverable

some injury

In an action for some injury done by a ferocious Damages animal, e.g. a fierce dog, the damages awarded to the by a plaintiff plaintiff may include, not only the actual expenses he in respect of has been put to in getting cured, but also the bodily done by a pain he has suffered, as by undergoing a surgical animal. operation (a).

savage

in seduction.

For the measure of damages in an action for seduc- As to damages tion the student is referred to the previous remarks on that subject (b).

actions for

marriage.

In actions for breach of promise of marriage the Damages in only rule that can be given is that temperate and breach of reasonable damages should be awarded, the jury fairly promise of considering the grief caused by the breach, and the probable pecuniary or social loss sustained by the plaintiff; but any evil motives of the defendant, or circumstances of aggravation, may be taken into account.

The damages to be awarded the plaintiff in an action

(x) Battishill v. Reed, 25 L. J. (C.P.) 290.

(y) 21 & 22 Vict. c. 27. Bowen v. Hall, L. R. 6 Q. B. D. 333; 50 L. J. Q. B. 305; 29 W. R. 367.

(z) See as to nuisances, ante, pp. 293-296.

(a) Addison on Torts, 116, 117. As to injuries by ferocious animals, see ante, pp. 309, 310, 371.

(b) Ante, p. 362.

Damages in actions for assault and

battery, and false imprisonment.

Damages recoverable

for assault and battery (c) must always depend on the circumstances of the case. In the case of a simple and somewhat excusable assault, nominal damages only will generally be given, but exemplary damages may be given if there has been any special injury, or the assault has been attended with circumstances of insult, or has been premeditated (d). In actions, too, for false imprisonment (e), the damages must depend on the same principles (ƒ).

In actions for malicious prosecution (g) damages may in actions for be awarded not only in respect of the actual pecuniary

malicious

prosecution.

The statute

6 & 7 Vict. c.

loss the plaintiff may have been put to in defending himself, but also in respect of the injury done to his character (h).

With reference to the damages recoverable in re96, may affect spect of libel or slander, the student is reminded of the the question of effect in some cases of the provisions in the statute actions for libel 6 & 7 Vict. c. 96, before noticed in treating of those subjects (i).

damages in

or slander.

Damages recoverable against a nonattending witness.

The damages recoverable against a witness who has been served with a subpoena, and whose reasonable expenses have been tendered, consist of a penalty of £10, and such further sum, as may be awarded for the injury or loss sustained by the party who subpoenaed him (k). If, through the non-attendance of the witness, the party gets the trial postponed, the proper measure of damages will be the expenses of going down to the trial and of getting it postponed, and all costs incidental to such postponement.

(c) As to which see ante, pp. 322-330.

(d) Mayne on Damages, 402-404.

(e) As to which see ante, pp. 331-339.

(f) Mayne on Damages, 402-404.

(g) As to which see ante, pp. 340-342.
(h) Mayne on Damages, 398.

(i) See ante, chap. v., p. 353 et seq.

(k) 5 Eliz. c. 9, s. 12, made-perpetual by 26 & 27 Vict. c. 125.