water not increased or diminished in quantity, and unpolluted in quality, and for any infraction of this right at least nominal [13] damages may be recovered. A fraud by which one is drawn into a contract is an injury actionable per se. Actual damage is not necessary to an action. A violation of a right with the possibility of damage is sufficient ground.3 § 11. The right a substantial one; new trials. The failure to perform a duty or contract is a legal wrong independently of actual damage to the party for whose benefit the performance of such duty or contract is due. The omission to N. H. 53; McCoy v. Danley, 20 Pa. St. 89; Tootle v. Clifton, 22 Ohio St. 247; Kemmerrer v. Edelman, 23 Pa. St. 143; Warren v. Deslippes, 33 Up. Can. Q. B. 59; Plumleigh v. Dawson, 6 Ill. 544; Pastorius v. Fisher, 1 Rawle, 27; Whipple v. Cumberland M. Co., 2 Story, 661: Jones v. Hannovan, 55 Mo. 462; Doud v. Guthrie, 13 Ill. App. 653; Mellor v. Pilgrim, 7 Ill. App. 306; Mize v. Glenn, 38 Mo. App. 98. 1 New York Rubber Co. v. Rothery, 132 N. Y. 293; Newhall v. Gilson, 8 Cush. 595; Tillotson v. Smith, 32 N. H. 90; Wadsworth v. Tillotson, 15 Conn. 366; Clinton v. Myers, 46 N. Y. 511; Holsman v. Boiling Spring B. Co., 14 N. J. Eq. 335; Embrey v. Owen, 6 Exch. 353; Northam v. Hurley, 1 El. & Bl. 665; Stockport Water Works Co. v. Potter, 7 H. & N. 160; Tyler v. Wilkinson, 4 Mason, 397; Wood v. Waud, 3 Exch. 748; Tuthill v. Scott, 43 Vt. 525; Munroe v. Stickney, 48 Me. 462; Mitchell v. Barry, 26 Up. Can. Q. B. 416; Blanchard v. Baker, 8 Me. 253; Stein v. Burden, 24 Ala. 130. 2 Allaire v. Whitney, 1 Hill, 484; Ledbetter v. Morris, 3 Jones' L. 543; Pontifex v. Bignold, 3 Scott N. R. 390. 3 Id.; National Exchange Bank v. Sibley, 71 Ga. 726, 734; Ross v. Thompson, 78 Ind. 90; Hooten v. Barnard, 137 Mass. 36; Blodgett v. Stone, 60 N. H. 167. Mr. Justice Story observed in Webb v. Portland Manuf. Co., 3 Sumner, 189, that actual perceptible damage is not indispensable as the foundation of an action. The law tolerates no further inquiry than whether there has been the violation of a right. If so, the party is entitled to maintain his action in vindication of his right. In Whittemore v. Cutter, 1 Gall. 429, 433, he said that, where the law gives an action for a particular act, the doing of that act imports of itself a damage. See Enos v. Cole, 53 Wis. 235. 4 Spafford v. Goodell, 3 McLean, 97; Runlett v. Bell, 5 N. H. 433; Hagan v. Riley, 13 Gray, 515; Pond v. Merrifield, 12 Cush. 181; Bagby v. Harris, 9 Ala. 173; Clinton v. Mercer, 3 Murph. 119; Conger v. Weaver, 20 N. Y. 140; Mecklem v. Blake, 22 Wis. 495; Freese v. Crary, 29 Ind. 525; Worth v. Edmonds, 52 Barb. 40; French v. Bent, 43 N. H. 448; Johnson v. Stear, 15 C. B. (N. S.) 330; Steer v. Crowley, 14 C. B. (N. S.) 337; Brown v. Emerson, 18 Mo. 103; Laflin v. Willard, 16 Pick. 64; Goodnow v. Willard, 5 Met. 517; Browner v. Davis, 15 Cal. 9; Conroy v. Flint, 5 Cal. 327; Seat v. Moreland, 7 Humph. 575; Bond v. Hilton, 2 Jones' L. 149; Craig v. Chambers, 17 Ohio St. 254 ; 3 show actual damages and the inference therefrom that none have been sustained do not necessarily render the case trivial. The law bas regard for the substantial rights of parties though it may overlook trivial things.' When such a right is violated the maxim de minimis non curat lex has no application. The court will add nominal damages to the finding of a jury when necessary to such rights, as to carry costs. So where [14–16] judgment should have been given for plaintiff for nominal damages, but was rendered for defendant, it will be reversed if such damages will entitle the plaintiff to costs; otherwise a judgment which is erroneous only because it fails to award plaintiff nominal damages will not be reversed, nor will a new trial be granted. But if the object of the action is to determine some question of permanent right, and through error the plaintiff is deprived of the judgment he is entitled to, the fact that he can recover only nominal damages will not be reason for denying a new trial. If the right to such damages is established the .court cannot ignore it and give the defendant judgment although the jury erroneously find substantial Dow v. Humbert, 91 U. S. 294; Smith v. Whiting, 100 Mass. 122; Blot v. Boiceau, 3 N. Y. 78; Hickey v. Baird, 9 Mich. 32; McCarty v. Beach, 10 Cal. 461; Lawrence v. Rice, 12 Met. 535; Devendorf v. Wert, 42 Barb. 227; Newcomb v. Wallace, 112 Mass. 25; Chamberlain v. Parker, 45 N. Y. 569; Wilcox v. Executor of Plummer, 4 Pet. 172; Clark v. Smith, 9 Conn. 379; Barker v. Green, 2 Bing. 317; Pollard v. Porter, 3 Gray, 312; Marzetti v. Williams, 1 B. & Ad. 415; Jo lan v. Gallup, 16 Conn. 536; Cooper v. Wolf, 15 Ohio St. 523; Mickles v. Hart, 1 Denio, 548; Carl v. Granger Coal Co., 69 Iowa, 519; Rosser v. Timberlake, 78 Ala. 162. 1 Smith v. Gugerty, 4 Barb. 614; Hathorne v. Stinson, 12 Me. 183; Stowell v. Lincoln, 11 Gray, 434; Kimel v. Kimel, 4 Jones' L. 121; Ellicottville, etc. Plank R. Co. v. Buffalo, etc. R. Co., 20 Barb. 644. 2 Von Schoening v. Buchanan, 14 Abb. 185. 3 Potter v. Mellen, 36 Minn. 122; Enos v. Cole, 53 Wis. 235; Sayles v. Bemis, 57 Wis. 315; Eaton v. Lyman, 30 Wis. 41. 4 Hickey v. Baird, 9 Mich. 32; Robertson v. Gentry, 2 Bibb, 542; Watson v. Van Meter, 43 Iowa, 76; Wire v. Foster, 62 Iowa, 114; Ely v. Parsons, 55 Conn. 83, 101; Platter v. Seymour, 86 Ind. 323; Rhine v. Morris, 96 Ind. 81; Norman v. Winch, 65 Iowa, 263; Harris v. Kerr, 37 Minn. 537; Hibbard v. Western U.Tel. Co., 33 Wis. 558; Benson v. Waukesha, 74 Wis. 31; Beatty v. Oille, 12 Can. Sup. Ct. 706; Mears v. Cornwall, 73 Mich. 78; Haven v. Manuf. Co., 40 id. 286. 5 Ibid.; Brantingham v. Fay, 1 Johns. Cas. 256; Jennings v. Loring, 5 Ind. 250; Watson v. Hamilton, 6 Rich. 75. 6 Merrill v. Dibble, 12 Ill. App. 85; Ely v. Parsons, 55 Conn. 83, 101. damages in plaintiff's favor. A cause of action may be so intrinsically trivial and vexatious that it would be almost a pardonable departure from the technical rule to apply the maxim de minimis non curat lex and direct a verdict for the defendant. It was so ruled in a Vermont case. The defendant as an officer had attached certain hay, straw, etc., and used a pitchfork belonging to the debtor in removing the same; he did no injury to the fork, and after its use returned it where he found it. The court held there was no liability. It is to be observed that though there was a technical wrong, by an unauthorized intermeddling with another's property, there was no assertion of an adverse right and no actual injury. The action was not necessary for the vindication of a right nor to redress a wrong deserving compensation. It was, however, a case in which, upon strict principles, nominal damages should have been given; for they are always due for the positive and wrongful invasion of another's property. Technical rules and rules as to the forms of proceedings must be observed without regard to the consequences which may follow in particular cases; otherwise the stability of judicial decisions and the certainty of the law cannot be preserved.* 3 1 Carl v. Granger Coal Co., 69 Iowa, Ld. Raym. 938; Kidder v. Barker, 18 519. Vt. 454; Clifton v. Hooper, 6 Q. B. 468; Barker v. Green, 2 Bing. 317; 2 Paul v. Slason, 22 Vt. 231. 3 Seneca Road Co. v. Auburn, etc. Williams v. Mostyn, 4 M. & W. 145; R. Co., 5 Hill, 175. 4 Clark v. Swift, 3 Met. 390, 395. In Fullam v. Stearns, 30 Vt. 443, it was said that whenever the maxim de minimis non curat lex is applied to take away a right of recovery, it has reference to the injury and not to the resulting damage. The opinion of Bennett, J., in that case states the result of several cases on this proposition. See Ashby v. White, 2 Cady v. Huntington, 1 N. H. 138; Young v. Spencer, 10 B. & C. 145; Embrey v. Owen, 6 Exch. 353, 372; Williams v. Esling, 4 Pa. St. 486; Glanvill v. Stacey, 6 B. & C. 543; Seneca Road Co. v. Auburn, etc. R. Co., 5 Hill, 175; Bustamente v. Stewart, 55 Cal. 115. A violation of right with a possibility of damage forms the ground of an action. Allaire v. Whitney, 1 Hill, 484. CHAPTER III. COMPENSATION. SECTION 1. COMPENSATORY DAMAGES. § 12. Award of compensation the object of the law. 13. Limitation of liability to natural and proximate consequences. CONSEQUENTIAL DAMAGES FOR TORTS. 15. Awarded for probable consequences of tort. 16. Rule of consequential damages for torts. 17-19. Illustrations of the doctrine of the preceding section. 20. Consequential damages under fence statutes. 21-24. Consequential mental suffering and its effects. 25. Anticipation of injury as to persons; illustrations. 26. Consequential damages in highway cases. 27. Negligence of third person. 28. Particular injury need not be foreseen. 29-31. The act complained of must be the efficient cause. 32. Breach of statutory duties. 33. Injury through third person. 34. Liability as affected by extraordinary circumstances. 35. Illustrations of the doctrine of the preceding section. 36. Liability of carriers for consequential damages; extraordinary cir cumstances. 37, 38. Intervening cause. 39. Act of injured party. 40-42. Act of third person. 43, 44. Wilful or malicious injuries. SECTION 4. CONSEQUENTIAL DAMAGES FOR BREACH OF CONTRACT. 45. Recoverable only when contemplated by the parties. 46. Illustrations of liability under the rule. 47. Liability not affected by collateral ventures. 48. Distinction between consequential liability in tort and on contract. 49. Criticism of the Hobbs case. 50. Liability under special circumstances. 51. Further illustrations and discussion of the rule. 52. Market value; resale; special circumstances. 4 SECTION 5. REQUIRED CERTAINTY OF DAMAGES. § 53. Damages must be certain in their nature and cause. 54. Liability for the principal loss extends to details and incidents. 55. Only the items which are certain are recoverable. 56-58. Recovery on successive consequences. 59-60. Required certainty of anticipated profits. 61. Warranty of seeds. 62. Prospective growth of orchard. 63. Profits of special contracts. 65. Violation of lease. 66. Profits of labor. 67. Profits from commercial ventures. 69. Commercial agencies. 70. Tortious interference with business. 71. Chances for prizes and promotions. 72. Contingent advantage. 73. Uncertain mitigation of breach of marriage promise. 74. Failure to provide sinking fund. SECTION 6. THE CONSTITUENTS OF COMPENSATION, OR ELEMENTS OF DAMAGE. 75. Elementary limitation of damages. 76. Damages for non-payment of money. 77. Greater damages than interest for failure to pay money. 78. Liability for gains and losses. 79. What losses elements of damage. 80. Same subject; labor and expenditures. 81. Same subject; damages for relying on performance. 82. Same subject; liabilities to third persons; covenants of indemnity. 83. Indemnity to municipalities; counsel fees. 84. Liability for losses and expenses. 85. Bonds and undertakings; damages and costs. 86, 87. Necessity of notice to indemnitor. 88. Expenses incurred to prevent or lessen damages. 89. Same subject; between vendor and vendee. 90. Same subject; extent of the duty. 91. Employer may finish work at contractor's expense. 92. May damages for breach of contract include other than pecuniary elements? 93. Elements of damage for personal torts. 94. Character as affecting damages for personal injuries. 95-97. Mental suffering. 98. Right to compensation not affected by motive. 99. Distinction made for bad motive; contracts. 100. Motives in tort actions. |