domum ipsius W. apud B. fregit, et tenentibus et seruientibus suis de vita et mutilatione membrorum suorum ibidem intantum comminatus fuit, & eos tantis iniuriis et grauaminibus ibidem affecit, quod iidem tenentes tenuram ipsius Walteri ibidem reliquerunt, dictique seruientes a seruitio suo recesserunt, sic que idem Walterus seruitium seruientium suorum praedictorum, ac reditus et seruitia tenentium suorum praedictorum, per magnum tempus amisit, et alia enormia, &c. 130. GARRET v. TAYLOR. King's Bench. 1621. (Cro. Jac. 567.) Action on the case. Whereas he was a free mason, and used to sell stones, and to make stone-buildings, and was possessed of a lease for divers years to come of a stonepit in Hedington, in the county of Oxford, and digged divers stones there, as well to sell as to build withal; that the defendant, to discredit and to deprive him of the commodity of the said mine, imposed so many and so great threats upon his workmen, and all comers disturbed, threatening to mayhem and vex them with suits if they bought any stones; whereupon they all desisted from buying, and the others from working, &c. After judgment by nihil dicit for the plaintiff, and damages found by inquisition to fifteen pounds, it was moved in arrest of judgment, that this action lay not; for nothing is alleged but only words, and no act or insult: and causeless suits on fear are no cause of action. Sed non allocatur: for the threatening to mayhem, and suits, whereby they durst not work or buy, is a great damage to the plaintiff, and his losing the benefit of his quarries a good cause of action: and although it be not shewn how he was possessed for years, by what title, &c. yet that being but a conveyance to this action, was held to be well enough. And adjudged for the plaintiff. 131. ALLISON v. CHANDLER SUPREME COURT OF MICHIGAN. 1863 11 Mich. 542 ERROR to Wayne Circuit, where Allison brought suit against Chandler for trespass in breaking into a store occupied by plaintiff in Detroit, and tearing off the roof, and committing other injuries by which it was rendered untenantable. The case was once before in the Supreme Court, and a full statement of the pleadings will be found in 10 Mich. Rep. 460. The prior judgment having been reversed, the following proceedings took place on the new trial. The plaintiff being sworn as a witness, gave testimony tending to show that in August, 1860, the plaintiff was the tenant of the defendant, in store number 176 Jefferson Avenue, Detroit, and had been for several years, and as such tenant was rightfully in the possession of said store, and entitled to the peaceable and quiet enjoyment thereof, until May 1st, 1861, under an agreement made February 1st, 1860; that about August 15th, 1860, the defendant caused the roof of said. store to be torn off; that plaintiff repaired said roof; that a few days afterwards defendant again caused the roof to be torn off, and the gable end to be forced away and thrown down, and thus rendered the store entirely untenantable, and the plaintiff was in consequence forced to leave said store, and thereupon hired another store, the best he could obtain, but not nearly as good for his business, which consisted largely in repairing watches, making gold pens, and selling jewelry. The counsel for the plaintiff then asked the witness how much the watch-repairing business was worth a year? To which question the defendant objected as incompetent, and the Court sustained said objection, and excluded said testimony, and plaintiff excepted. The counsel for the plaintiff then asked the witness what was the extent or value of his whole business? This question was in like manner objected to and excluded, as were also the further questions, whether his business, during the year prior to the time when said store was torn down, was a profitable one? And whether, after his removal to the new store, his business fell off, and if so, how much? The witness then further testified, that the reasons why his new place of business, which he obtained, was not as good a place for business as the store from which he was ejected, were that his customers did not come to the new store, there was not so much of a thoroughfare by it, not one quarter of the travel, and he relied very much on chance custom, especially in the watch-repairing and other mechanical business. The Circuit Judge charged the jury, upon the question of damages, as follows: 1st. If the plaintiff is entitled to recover, he can only recover his actual damages if the jury find that the defendant, in doing the acts complained of, acted without malice and in good faith, under the belief that he had a legal right to the possession of the store, and to tear it down, and that, in determining the question of damages, they should not take into consideration the value of the good will of the place, or the plaintiff's probable profits. 2d. That if the jury find for the plaintiff, and find that the defendant, in tearing down the store, acted in good faith, and under an honest belief that he had a legal right to do so, that then the plaintiff can only recover his actual damages; and in determining them, the jury must confine themselves to the expenses of repairs after the first tearing off the roof, his loss of time and expense of moving, with the loss occasioned by the interruption of his business during the time of his removal, together with the difference, if any, between the rent paid and the fair rental value of the store for the year. And in determining this, the jury will take into consideration all the facts and circumstances of the case. To this charge the plaintiff excepted, and judgment having been rendered in his favor for $100 only, the case came up for review upon the several exceptions thus taken. . CHRISTIANCY, J. When this cause was formerly before us (Chand ler v. Allison, 10 Mich. 460), one of the questions involved was, whether Allison, the plaintiff, was rightfully in possession of the store at the time the trespass was committed, or whether his right of possession was dependent upon Chandler's election to rebuild, and ceased when that election was made; and one of the grounds upon which the judgment in that case was reversed, was, the rejection of evidence tending to show that Allison's right of possession was thus qualified. But as the case now appears before us upon exceptions taken on the new trial, the finding of the jury, whether right or wrong- no exception having been taken to the evidence or the charge upon this point requires us to treat this question, so far as we are now to consider the case, as settled in favor of the plaintiff; and the defendant must be considered as a trespasser, entering upon the premises and tearing down the store while in the rightful possession of the plaintiff, under a lease for a term which would not expire till the first day of May following. . . Whether the rulings of the Court, upon the admission of evidence, and in the charge to the jury, did not lay down too narrow a rule for the estimation of actual damages, is the main question for our consideration. . . . The principle of compensation for the loss or injury sustained, is, we think, that which lies at the basis of the whole question of damages in most actions at common law, whether of contract or tort. We do not here speak of those actions in which punitory or exemplary damages may be given, nor of those whose principle is the establishment of a right, where merely nominal damages are proper. But, with these exceptions, the only just theory of an action for damages to be recovered should compensate the loss or injury sustained. We concur entirely with the Court of Appeals in New York in Griffin v. Colver, 10 N. Y. 492, in repudiating the doctrine adopted by Mr. Sedgwick, from Domat (Sedgw. on Dam. 3, 37, 38, etc.), that "the law aims not at the satisfaction, but the division, of the loss." Such, it is true, is often the result of an action, but never the object of the law. The law may, and often does, fail of doing complete justice, from the imperfection of its means of ascertaining truth, and tracing and apportioning effects to their various causes; but it is not liable to the reproach of doing positive injustice by design. Such a doctrine would tend not only to make the law itself odious, but to corrupt its administration, by fostering a disregard of the just rights of parties. In actions upon contract, especially, and those nominally in tort, but substantially upon contract, Courts have thought it generally safer, upon the whole, to adopt certain definite rules for the government of the jury by which the damages could be estimated, at the risk of falling somewhat short of the actual damages, by rejecting such as could not be estimated by a fixed rule, than to leave the whole matter entirely at large with the jury, without any rule to govern their discretion, or to detect or correct errors or corruption in the verdict. In such cases, therefore, there has been a strong inclination to seize upon such elements of certainty as the case might happen to present, and as might approximate compensation, and to frame thereon rules of law for the measurement of damages, though it might be evident that further damages must have been suffered, which, however, could only be estimated as matter of opinion, and must therefore be excluded under the rules thus adopted. And it is not to be denied that this course of decision has sometimes been extended to actions purely of tort. But whatever plausibility there may be in the theory of Mr. Sedgwick when applied to actions upon contract a plausibility which arises from mistaking the result for the object the injustice of such a principle, when applied to cases of actual, positive tort, like that here in question, would be so gross as to shock all sense of justice. . . . There are some important considerations which tend to limit damages in an action upon contract, which have no application to those purely of tort. Contracts are made only by the mutual consent of the respective parties; and each party, for a consideration, thereby consents that the other shall have certain rights as against him, which he would not otherwise possess. In entering into the contract the parties are supposed to understand its legal effect, and, consequently, the limitations which the law, for the sake of certainty, has fixed for the recovery of damages for its breach. If not satisfied with the risk which these rules impose, the parties may decline to enter into the contract, or may fix their own rule of damages when, in their nature, the amount must be uncertain. Hence, when suit is brought upon such contract, and it is found that the entire damages actually sustained cannot be recovered without a violation of such rules, the deficiency is a loss, the risk of which the party voluntarily assumed on entering into the contract, for the chance of benefit or advantage which the contract would have given him in case of performance. None of these several considerations have any bearing in an action purely of tort. The injured party has consented to enter into no relation with the wrongdoer by which any hazard of loss should be incurred; nor has he received any consideration, or chance of benefit or advantage, for the assumption of such hazard; nor has the wrongdoer given any consideration, nor assumed any risk, in consequence of any act or consent of his. The injured has had no opportunity to protect himself by contract against any uncertainty in the estimate of damages; no act of his has contributed to the injury; he has yielded nothing by consent; and, least of all, has he consented that the wrongdoer might take or injure his property or deprive him of his rights, for such sum as, by the strict rules which the law has established for the measurement of damages. in actions upon contract, he may be able to show, with certainty, he has sustained by such taking or injury. Especially would it be unjust to presume such consent, and to hold him to the recovery of such damages only as may be measured with certainty by fixed and definite rules, when the case is one which, from its very nature, affords no elements of certainty by which the loss he has actually suffered can be shown with accuracy by any evidence of which the case is susceptible. Is he to blame because the case happens to be one of this character? He has had no choice, no selection. The nature of the case is such that the wrongdoer has chosen to make it, and upon every principle of justice, he is the party who should be made to sustain all the risk of loss which may arise from the uncertainty pertaining to the nature of the case, and the difficulty of accurately estimating the results of his own wrongful act. Upon what principle of right can courts of justice assume not simply to divide this risk, which would be thus far unjust but to relieve the wrongdoer from it entirely, and throw the whole upon the innocent and injured party? Must not such a course of decision tend to encourage trespasses, and operate as an inducement for parties to right themselves by violence, in cases like the present? Since, from the nature of the case, the damages cannot be estimated with certainty, and there is a risk of giving by one course of trial less, and by the other more than a fair compensation to say nothing of justice does not sound policy require that the risk should be thrown upon the wrongdoer instead of the injured party? However this question may be answered, we cannot resist the conclusion that it is better to run a slight risk of giving somewhat more than actual compensation, than to adopt a rule which, under the circumstances of the case, will, in all reasonable probability, preclude the injured party from the recovery of a large proportion of the damages he has actually sustained from the injury, though the amount thus excluded cannot be estimated with accuracy by a fixed and certain rule. . . . The justice of the principles we have endeavored to explain will, we think, be sufficiently manifest in their application to the present case. The evidence strongly tended to show an ouster of the plaintiff for the balance of the term, by the defendant's act. This term was the property of the plaintiff; and, as proprietor, he was entitled to all the benefits he could derive from it. . . . To confine the plaintiff to the difference between the rent paid and the fair rental value of the premises to others, for the balance of the term, would be but a mockery of justice. To test this, suppose the plaintiff is actually paying that full rental value, and has established a business upon the premises, the clear gains or profits of which have been an average of one thousand dollars per year; and he is ousted from the premises and this business entirely broken up for the balance of the term; can he be allowed to recover nothing but six cents damages for his loss? To ask such a question is to answer it. The rule which would confine the plaintiff to the difference between such rental value and the stipulated rent can rest only upon the assumption that the plaintiff might (as in case of personal property) go at once into the market and obtain another building equally well fitted for his busi |