A Treatise on the Measure of Damages: Or, An Inquiry Into the Principles ... - Theodore Sedgwick - Google grāmatas

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Distinction between Common Law and Equity, as to the relief given.-Origin

of damages. Different principles on which different systems of jurispru-

dence act in awarding damages.-That of the English and American

systems is Compensation.-Nature and extent of this compensation gene-

rally.-Difficulties arising from the Forms of action.

NOMINAL DAMAGES.

REMOTE AND CONSEQUENTIAL DAMAGES.

No compensation allowed in damages, but for the direct and immediate conse-

quences of the act complained of-French Law on this subject-Scotch

Law-The Common Law-What are considered direct and immediate

consequences-Loss of profits-As between principal and surety-Statutes

-Counsel fees-Damages arising after suit brought-Prospective damages

-Liability of grantees of franchises for consequential damages. .

MEASURE OF DAMAGES IN ACTIONS FOR POSSESSION OF REAL PROPERTY.

Rule of Damages in actions brought to recover the possession of Real Estate―

In Real Actions generally-Ejectment-Trespass for mesne Profits-

MEASURE OF DAMAGES FOR WRONGFUL INTERFERENCE WITH REAL PROPERTY.

The Rule of Damages in actions for wrongful interference with the occupation

or enjoyment of Real Estate-Trespass to Real Property-Case-Nuisance

PAGE

RULE OF DAMAGES IN ACTIONS BROUGHT FOR THE BREACH OF COVENANTS OR AGREEMENTS

GROWING OUT OF THE CONVEYANCE OR OCCUPATION OF REAL ESTATE.

The Ancient Warranty-Modern Covenants-The Stipulatio Duplex and Edic-

tum Edilium of the Roman Law-Rules of the Modern Civil Law, in cases

of Eviction-Of the French Code-Measure of Damages according to the

Common Law, in case of Eviction-On the Covenants for Quiet Enjoy-

ment, and of Warranty-Consideration named in the Deed-Measure of

Damages on the Covenant of Seisin-On the Covenant against Incum-

brances-On Covenants to convey Lands-Covenants in Leases-Cove-

nants to repair and to rebuild Ecclesiastical Property.

THE MEASURE OF DAMAGES IN ACTIONS ON CONTRACTS.

General rules of compensation in personal actions founded on breach of con-

tract, without penalty or liquidated damages-Damages limited to the

results of the breach of contract-Motives of the defendant not inquired

into-Exceptions. The contract controls the measure of damages-Ex-

ceptions. Tender, how far equivalent to performance in reference to

damages-Compensation in cases of partial or imperfect performance of

contract-Rule of damages on continuing agreements-Forms of action

employed-Account obsolete.

THE MEASURE OF DAMAGES IN ACTIONS UPON PROMISSORY NOTES AND BILLS OF EXCHANGE.

On Promissory Notes the legal rate of interest fixes the measure of damages.

Questions-when the currency is altered-when the contract is made in

one country and the suit is brought in another-when the amount of

recovery depends on the consideration paid or received. Rule of Damages

on Bills of Exchange-Re-exchange fixed in the United States generally

THE MEASURE OF DAMAGES IN ACTIONS UPON POLICIES OF INSURANCE.

Marine Insurance-partial loss-total loss—general average—the principle of

arbitrary remuneration-Fire Insurance-Life Insurance.

MEASURE OF DAMAGES UPON THE BREACH OF CONTRACTS FOR THE SALE OF PERSONAL

Roman Law-General rule as against vendor is, the difference between the

contract price and the value of the article on the day fixed for delivery-

How far this rule is modified by payment of the price in advance-Exam-

ination of the decisions-As against vendee, the whole price may be

recovered, although the article be not delivered-Rules of the modern

Civil Law-Molinæus-Pothier-Measure of damages against vendor

upon breach of warranty, is the difference between the value of the article

as warranted, and its value as delivered.

THE MEASURE OF DAMAGES IN ACTIONS GROWING OUT OF THE CONTRACT OF PRINCIPAL AND

Various contracts of suretyship-Rights resulting from implied promise-

Express promise to do a particular act-Express promise to indemnify

and save harmless-As a general rule, the surety cannot make any claim

against his principal until he has actually paid the debt-Exception

where the party contracts to do a particular thing—The measure of dam-

ages as affected by the mode of payment-when made in land or property

other than money—when in securities-What expenses or costs the surety

can recover against the principal-Measure of damages as between surety

and co-surety-as between lessee and sub-lessee.

RULE OF DAMAGES AS BETWEEN PRINCIPAL AND AGENT.

Liability of Agents for nominal Damages-The measure of Remuneration is a

question of law, whether the common-law forms of Assumpsit or Case be

employed-The Agent is charged with the amount of the loss, if he has

been guilty of negligence, whether the loss be the direct consequence of

his neglect or not-Cases examined-The Agent may show that no loss

has resulted-Liability of Principal to Agent-Sub-Agents.

THE MEASURE OF DAMAGES IN REGARD TO COMMON CARRIERS, UPON BILLS OF LADING,

AND ON CONTRACTS OF AFFREIGHTMENT.

The value of the article at the place of destination fixes the measure of dam-

ages Cases examined-Mode of arriving at the value-Rule, when suit

is brought by Carrier on breach of agreement to furnish freight.

OF CERTAIN SPECIAL CONTRACTS, AND OF THE COMMON-LAW ACTION OF COVENANT.

Cases of Contracts not considered in the previous chapters-Damages on Agree-

ments for forbearance-Contractors on Public Works-Misappropriation

of Pledges-Cases examined-Forfeiture of Stock by Corporation-Refusal

by Corporation to permit transfer of Stock-Damages in suits by Assignees

of Bankrupts-Breach of Promise of Marriage-Action of Covenant—

Charter Parties—Assignments of Judgments-Leases.

OF INTEREST WITH REFERENCE TO DAMAGES.

Interest first given in England by Statute-When allowed as matter of Law

-When by the Jury in their discretion-Allowed where a principal sum

is to be paid at a fixed time-Where an agreement can be inferred-Not

allowed where the demand is unliquidated-Conflict between English

and American decisions-Money improperly detained-Cash advances-

Special cases-Compound Interest-Cash advances-Discretion of the

Jury-In Trover and Trespass-Interest on Error-On Judgment-When

Principal has been paid.

OF PENALTIES; LIQUIDATED DAMAGES; AND THE COMMON-LAW ACTION OF DEBT.

Debt and Covenant-Debt on Bond-Amount of recovery within the Penalty

-Assignment of Breaches-Liquidated Damages-Ne-Exeat Bonds-

Bonds to resign Livings-Recovery beyond the Penalty. .

SET-OFF AND RECOUPMENT OF DAMAGES.

No Set-off at Common Law-Introduced by the Courts of Equity-Statutes

on the subject-Original meaning of Recoupment-Cases in England-

Where suit brought on the original contract; or on a Bill or Note given

under it-Where Fraud set up-Necessity of notice-American significa-

tion of the term-Cases in this country-Payment after suit brought.

THE RULE OF DAMAGES IN ACTIONS FOR TORTS GENERALLY.

Forms of Action prescribed for wrongs-Trover-Case-Trespass-Replevin-

Unless Aggravation is proved, the Measure of Damages in actions of Tort

is matter of Law-Where Aggravation is shown, the Jury have a discre-

tion to give Exemplary or Vindictive Damages beyond compensation for

actual Loss-All the attendant circumstances may be proved-Rule where

both plaintiff and defendant are in fault-In Collision-In Cases of Felony. 475

THE RULE OF DAMAGES IN ACTIONS BROUGHT FOR THE MISAPPROPRIATION OR CONVERSION

OF PERSONAL PROPERTY-THE COMMON-LAW ACTION OF TROVER.

The general Rule is the value of the property converted-Special Damages,

whether recoverable-Value, whether estimated at time of conversion

or at time of trial-Where plaintiff claims a special property, or by virtue

of a lien-Where the defendant has bestowed labor on the property-In

regard to Choses in Action-Interest-Mitigation of Damages.

THE RULE OF DAMAGES IN ACTIONS BROUGHT FOR THE RECOVERY OF SPECIFIC PERSONAL

PROPERTY; THE COMMON-LAW ACTIONS OF DETINUE AND REPLEVIN.

Detinue Nature of the proceeding of Replevin-In this action damages can

be recovered by both parties-Where the defendant succeeds, he is enti-

tled to interest upon the value of the property during its detention-How

the value is to be estimated-Damages recoverable by the plaintiff.

THE MEASURE OF DAMAGES IN ACTIONS OF CASE AND TRESPASS SUITS AGAINST SHERIFFS

AND OTHER PUBLIC OFFICERS; AND AGAINST THEIR SURETIES.

In actions of Case or Trespass, against Public Officers, the Rule of Damages is

usually a question of law-The general Rule is the injury actually sus-

tained by the plaintiff On whom does the proof of damage rest?—Cases

examined-In America, the debt due the plaintiff is primâ facie the Mea-

sure of Damages-If aggravation is shown, the jury may give exemplary

Damages Mitigation Suits against Collectors of Customs-Suits against

Sureties of Public Officers..

THE MEASURE OF DAMAGES IN CASES OF TRESPASS TO PERSON OR TO PROPERTY.

In every case of trespass, damages are recoverable whether the act was inten-

tional or accidental. But if no aggravation is shown, the rule of damages

is generally a question of law-Case or Trespass for injuries to property—

Decisions examined-Mitigation-Case or Trespass for injuries to person

-Libel and Slander-Slander to Title-Seduction-Criminal Conversa-

tion-Breach of Promise-Enticing Servants-Malicious Prosecution—

Decisions examined-Mitigation-Case or Trespass where Fraud is

averred-Fraud in sale of lands-Mitigation and Recoupment-General

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