have been held not capable in their nature of legal computation; there is no legal standard by which they can be fixed; they are shadowy, uncertain and speculative.1

SECTION 6.

THE CONSTITUENTS OF COMPENSATION, OR ELEMENTS OF DAMAGE.

[127] 875. Elementary limitation of damages. The elementary limitation of recovery to a just indemnity for actual injury, estimated upon the natural and proximate consequences of the injurious act, fixes a logical boundary of redress in the form of compensation and furnishes a general test by which any particulars may be included or rejected. Recovery beyond nominal damages requires that actual injury be shown except in those cases where there are no pecuniary elements or measure, and the amount of the recovery is necessarily left to the discretion of the jury, as in cases of personal injury or defamation of character." What are the elements of injury which may be compensated? This inquiry is a legal one and must be determined by the court; where the details are capable of pecuniary valuation the law affords some standard for measuring compensation for them. The elements of damage are always correlative to the right violated by the act complained of; and the amount of compensation, whether measured by legal rules or referred to the discretion of the jury, must depend on the nature of the right and the mode, Incidents and consequences of the violative act. Each party

1 Memphis v. Brown, 20 Wall. 289. 2 In Scott v. Williams, 1 Dev. 376, an action for assault and battery and false imprisonment, its object being to determine whether the plaintiff who was held as a slave was not a freeman, more than nominal damages were given, though there seems to have been no proof of the actual damages.

In Creech v. Creech, 98 N. C. 155, an action upon an apprentice bond, evidence was given to show that the health of the apprentice had suffered by the master's improper treatment;

but it did not appear to what extent it had been injured. It was ruled not to be error to instruct the jury that they might determine if there was damage from that cause and fix the amount.

3 If land is injured by a wrongful act or taken under the power of eminent domain the owner may have his damages fixed with regard to its adaptability to any use to which it may be applied; he is not restricted to such damages as it sustained for the purpose it was used when the injury was done or it was taken.

to a contract has a legal right to performance by the other according to its legal import and effect. Any default is a violation of that right. The injured party is entitled to a [128] measure of compensation which will place him in as good condition as if the contract had been fulfilled. In other words, all the natural and proximate results of the act complained of will be considered with a view to giving him compensation for all gains prevented and all losses sustained. The particular stipulations of the contract and the alleged breach will circumscribe the inquiry; and the facts establishing the breach and its consequences will constitute its subjects.

$76. Damages for non-payment of money. On a contract for the mere payment of money the unpaid principal, together with the stipulated, or after maturity the lawful, rate of interest is the measure of damages. It is the invariable measure of recovery in a creditor's action against his debtor.1 The failure to pay a debt when due may disappoint the creditor and embarrass him in his affairs and collateral undertakings; he may consequentially suffer losses for which interest is a very inadequate compensation; but they are remote and do not result alone from the default of his debtor. Money, like the staples of commerce, is in legal contemplation always in market and procurable at the lawful rate of interest; and the same principle which limits a disappointed vendee's recovery against his defaulting vendor to the market value of the commodity which is the subject of his contract restricts the creditor to the principal and interest. The practical difficulty to a creditor of borrowing the money, where the debtor is withholding the sum he owes and which is wanted, and that of a vendee in making a new purchase after he has paid the defaulting vendor for the goods needed, is the same. No party's condition, in respect to the measure of damages, should be worse for having failed in his engagement to a person whose

Boom Co. v. Patterson, 98 J. S. 403; Fort Worth, etc. Ry. Co. v. Wallace, 74 Texas, 581; Same v. Hogsett, 67 id. 685.

The damages for the loss of a grove wholly situated upon a part of a farm which is separated from the larger tract included in it by a railroad are

to be awarded with regard to its usefulness to the whole farm. Brooks v. Chicago, etc. Ry. Co., 73 Iowa, 179.

1 Fletcher v. Tayleur, 17 C. B. 21; Short v. Skipwith, 1 Brock. 103; Bender v. Fromberger, 4 Dall. 436; Loudon v. Taxing District, 104 U. S. 771.

affairs are embarrassed than if the same result had occurred with one in prosperous or affluent circumstances.1

§ 77. Greater damages than interest for failure to pay money. Where the obligation to pay money is special and has reference to other objects than the mere discharge of a debt, as where it is agreed to be done to facilitate trade, and to [129] maintain the credit of the promisee in a foreign country; to take up commercial paper; pay taxes; discharge liens; relieve sureties; or for any other supposable ulterior object, damages beyond interest for delay of payment, according to the actual injury, may be recovered. A banker may be liable for damages not measured by interest for refusing to pay the check of his customer who has provided funds subject thereto. The credit of the drawer is likely to be injured by such refusal. In one such case for refusal to pay a check of 481. the jury gave a verdict of 500l. damages, and there was no evidence that special damage had been sustained. This was deemed excessive and was reduced by consent to 2007. The rule of Hadley v. Baxendale is applied to such cases. Bankers at Liverpool by letter of credit delivered to a customer undertook to accept drafts drawn abroad to be paid with his money deposited for that purpose. Before maturity they gave notice that they would be unable to pay the drafts at maturity and the customer was put to the expense of a commission to another party to take up the bills, of protesting them and of telegrams. These were held proper elements of damage." In another case the defendant's failure to meet the plaintiff's

1 Domat, B. 3, tit. 5, § 2, art. 4; Masterton v. Mayor, 7 Hill, 61.

2 A bank agreed to advance money to a customer with knowledge of the use he designed to make of it, and subsequently refused to do so. He was unable to procure the money elsewhere and was obliged to abandon his enterprise. There was a recovery of the actual damages sustained. Manchester & O. Bank v. Cook, 49 L. T. Rep. (1883), 674.

3 Marzetti v. Williams, 1 B. & Ad. 415; Birchall v. Third Nat. Bank, 17 Phila. 139.

4 Rolin v. Steward, 14 C. B. 595; Boyd v. Fitt, 14 Ir. C. L. (N. S.) 43; Larios v. Gurety, L. R. 5 P. C. 346; Prehn v. Royal Bank of Liverpool, L. R. 5 Exch. 92; Patterson v. Marine N. Bank, 130 Pa. St. 419. In Schaffner v. Ehrman, — Ill. - 28 N. E. Rep. 917, a verdict for $400 was sustained for a mistaken refusal to cash checks amounting to $900. 5 Id.

6 Prehn v. Royal Bank of Liver-, pool, supra.

drafts caused a suspension of the latter's business at one place, injured it at another, and caused the loss of a valuable agency; all resulting losses were recoverable.1

Where one person furnishes money to another to discharge an incumbrance upon the land of the person furnishing the money, and the person undertaking to discharge it neglects to do so, and the land is lost to the owner by reason of the neglect, the measure of damages may be the money furnished with interest, or the value of the land lost according to circumstances. If the land-owner has knowledge of the agent's failure in time to redeem the land himself his damages [130] will be the money furnished with interest. But if the landowner justly relies upon his agent to whom he has furnished money to discharge the incumbrance, and the land is lost without his knowledge, and solely through the fault of the agent, the latter will be liable for the value of the land at the time it is lost.3

§ 78. Liability for gains and losses. For breach of other contracts than to pay money the injured party is entitled to compensation for gains prevented and losses sustained. The gains prevented are those which would accrue to the contracting parties from the mutual performance of the contract. The damages for the total breach of a contract should include the value of it to the injured party. This is generally the measThere are some exceptions, as in case of contracts for

ure.

1 Boyd v. Fitt, supra.

2 In actions upon covenants against incumbrances or covenants to pay off specific incumbrances, the damages are the diminution in value of the estate by reason of the incumbrances, and where the contract broken was to pay off a specific lien the owner may recover the whole amount of it, although no damage has been proved. Lethbridge v. Mytton, 2 B. & Ad. 772; Carr v. Roberts, 5 id. 78; Loosemore v. Radford, 9 M. & W. 657; Hodgson v. Wood, 2 H. & C. 649.

The rule stated in the text does not apply where an individual accepts a deed for the land of another, and agrees with him to advance money to pay his debts, and to sell the land to raise money with which to repay himself the amount thus advanced, and where, after receiving the deed, he refuses to make the advancements. The liability of such person is not for the value of the land nor the sum which was to be advanced, but the actual damages sustained by the other party. Turpie v. Lowe, 114 Ind. 37, 54; Stanley v. Nye, 51 Mich.

3 Blood v. Wilkins, 43 Iowa, 565; 232. Gallup v. Miller, 25 Hun, 298.

the sale of land where title unexpectedly cannot be made, and generally on covenants for title in conveyances of real estate.1 By this general rule the party thus injured by a total breach is entitled to recover the profits of the particular contract which he shows, with sufficient certainty, would have accrued if the other party had performed. He is entitled to recover proportionately for a partial breach. And to ascertain these profits the nature and the special purpose of the contract, a subcontract, or other subsidiary and dependent arrangement within the contemplation of the parties at the time of contracting may be taken into consideration.2

1 Flureau v. Thornhill, 2 W. Bl. 1078; Worthington v. Warrington, 8 C. B. 134; Buckley v. Dawson, 4 Ir. C. L. (N. S.) 211; Sikes v. Wild, 1 B. & S. 594; Bain v. Fothergill, L. R. 6 Exch. 59; S. C., L. R. 7 Eng. & Irish App. 158; Baldwin v. Munn, 2 Wend. 399; Conger v. Weaver, 20 N. Y. 140; Pumpelly v. Phelps, 40 id. 60; Sweem v. Steele, 5 Iowa, 352; Drake v. Baker, 34 N. J. L. 358. See ch. 3, vol. 2.

2 Mason v. Alabama Iron Co., 73 Ala. 270; Jones v. Foster, 67 Wis. 296; Cameron v. White, 74 id. 425; Treat v. Hiles, 81 id. 280; Oliver v. Perkins (Mich.), 52 N. W. Rep. 609; Morgan v. Hefler, 68 Me. 131; Hadley v. Baxendale, 9 Exch. 341; McHose v. Fulmer, 73 Pa. St. 365; Van Arsdale v. Rundel, 82 Ill. 63; True v. International T. Co., 60 Me. 9; Booth v. Spuyten Duyvil R. M. Co., 60 N. Y. 487; Cassidy v. Le Fevre, 45 id. 562; Hexter v. Knox, 63 id. 561: Shepard v. Milwaukee Gas L. Co., 15 Wis. 318; Frye v. Maine C. R. Co., 67 Me. 414; Fultz v. Wycoff, 25 Ind. 321; Holden v. Lake Co., 53 N. H. 552; Coweta Falls M. Co. v. Rogers, 19 Ga. 416; Fox v. Harding, 7 Cush. 516; Fletcher Tayleur, 17 C. B. 21; Masterton v. Mayor, 7 Hill, 61; Wolcott v. Mount, 36 N. J. L. 262; Passinger v. Thor

V.

burn, 34 N. Y. 634; Smith v. Chicago,

etc. R. Co., 38 Iowa, 518; Van Wyck v. Allen, 69 N. Y. 61; Ferris v. Comstock, 33 Conn. 513; France v. Gaudet, L. R. 6 Q. B. 199; Messmore v. New York S. & L. Co., 40 N. Y. 422; Richmond v. D. & S. C. R. Co., 40 Iowa, 264; Ward v. New York C. R. Co., 47 N. Y. 29; Sisson v. Cleveland, etc. R. Co., 14 Mich. 489; Burrell v. New York, etc. Co., 14 Mich. 34; Maynard v. Pease, 99 Mass. 555; Bell v. Cunningham, 3 Pet. 69; Farwell v. Price, 30 Mo. 587.

In Pell v. Shearman, 10 Exch. 766, the defendant covenanted with the plaintiff that if he would surrender to his lessor a certain lease they would, within two years or such period as should be agreed in a new lease, which the lessor had agreed to grant them, sink upon the demised premises a pit to the depth of one hundred and thirty yards for the purpose of finding coal, and, in case