trespass committed, is not proveable, unless judgment has been signed in an action for such demand, constituting a debt contracted, before the filing of the petition («). In those cases where a plaintiff has the option of suing in an action of tort for damages for a wrong committed by the defendant, or of waiving the wrong and claiming the proceeds of the wrong in the hands of the defendant as a debt, if the plaintiff chooses to enforce his claim for damages, the defendant cannot plead his bankruptcy, because a demand of that nature is not proveable, and, therefore, not discharged by bankruptcy (); but if the plaintiff frames his demand as a debt, the bankruptcy of the defendant is a good defence, because such debt is proveable (c). Whenever a claim is discharged by bankruptcy, all the right to special damage, being accessory to and consequential on the claim, is also barred (d). (a) Robinson v. Vale, 2 B. & C. 762. (b) Ante, p. 48; Parker v. Norton, 6 T. R. 695; per Buller, J., Utterson v. Vernon, 3 T. R. 539, 548; Goodtitle v. North, 2 Doug. 584; Parker v. Crole, 5 Bing. 63. (c) Johnson v. Spiller, 1 Doug. 167; and see Woolley v. Smith, 3 C. B. 610, 618, 622. (d) Van Sandau v. Corsbie, 3 B & Ald. 13. Damages recoverable A BREACH of contract, so far as it extends, converts the for breach right to the performance of the contract into a right to daof contract. mages, or compensation in money, for the non-performance, to be ascertained and recovered by means of an action, unless the parties can agree as to the satisfaction of such right. The right of action for damages, in point of form, is regulated by the Law of Procedure, which is beyond the scope of this treatise. The damages, forming the substance of the right, are measured and ascertained in amount according to general rules and principles of law, some of which are common to all rights of action, and some are peculiar to those arising from breach of contract, and may, therefore, be here noticed. The damages recoverable in an action are commonly, and conveniently, distinguished in law, as general and special damages; the former being the necessary and immediate loss occasioned by the breach of contract or other injurious act; the latter comprising the loss which may follow as a special consequence of the breach of contract or injurious act, beyond its necessary and immediate effect. It is a rule of pleading, that if special damage is intended to be claimed, it must be stated with particularity in the declaration; but general damage requires no particular mention (a). The object of this rule is to give notice to the defendant of the nature and extent of the claim made against him, in respect of the special consequences of the injury, of which he might not otherwise be aware, in order that he may be prepared to meet that claim. The claim of general damages is sufficiently made known in the statement of the injury, which imports all its necessary and immediate effects (b). The plaintiff is not allowed to prove for any special damage which is not claimed with sufficient particularity in the declaration (c). In actions for breach of contract, the general damage is General commonly described as the loss sustained by the plaintiff damage. from the non-performance of the contract; the benefit which the plaintiff would have received if the contract had been kept is the measure of damages if the contract is broken (d). This rule is said to be correctly laid down by Parke, B., thus:-"The rule of the common law is, that, where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed" (e). But such damage is to be ascertained by a jury according to certain rules of law (ƒ). In actions for breach of contract the damages are confined to those matters of loss and detriment caused by the breach of contract which are in their nature capable of (a) See Boorman v. Nash, 9 B. & C. 145, 152; Rodgers v. Nowill, 5 C. B. 109. (b) Smith v. Thomas, 2 Bing. N. C. 372, 380. (c) 1 Wms. Saund. 243 c, n. (5); Hartley v. Herring, 8 T. R. 130; and see Bullen and Leake, Prec. Pl., 2nd ed., p. 8. (d) Alder v. Keighley, 15 M. & W. 117, 120; Fletcher v. Tayleur, 17 C. B. 21; 25 L. J. C. P. 65; per (e) Per Parke, B., Robinson v. Har- (f) See per Bramwell, B., Brady v. Oastler, 3 H. & C. 112, 124; 33 L. J. Ex. 300, 304. General damage. being specifically stated and appreciated in value; no damages can be awarded for the disappointment, or annoyance to the feelings, caused by the breach of contract (a). There is a distinction in this respect between actions for breach of contract and actions for wrongs done to the person or property. In the case of wrongs of the latter kind, generally speaking, "the damages are entirely with the jury, and they are at liberty to take into consideration the injury to the party's feelings, and the pain he has experienced, as for instance the extent of violence in an action of assault; and many topics and many elements of damage find place in an action for tort, which have no place whatever in an ordidinary action of contract" (b).—"The case of a contract to marry has always been considered a sort of exception, in which not merely the loss of an establishment in life, but, to a certain extent, the injury to a person's feelings in respect to that particular species of contract, may be taken into account" (c). It is further said that, "generally speaking, where there are several ways in which the contract might be performed, the damages are to be estimated according to that mode which is least profitable to the plaintiff and the least burthensome to the defendant" (d). The consideration given for a promise, for breach of which damages are claimed, is, in general, immaterial to the question of the amount of damages; thus, in an action for not delivering goods according to contract, upon the question of damages, it was held to be immaterial and inadmissible for the plaintiff to prove that the price agreed for was greater than the market price by reason of the undertaking of the defendant to deliver the goods at the time specified, the only question being the loss sustained by the non-delivery, which depended solely upon the market price of the goods at the (a) Hamlin v. Great Northern Ry. Co., 1 H. & N. 408; 26 L. J. Ex. 20. (b) Hamlin v. Great Northern Ry. Co., 26 L. J. Ex. 20, 23; 1 H. & N. 408, 410; and see Emblen v. Myers, 6 H. & N. 54; 30 L. J. Ex. 71. (c) Hamlin v. Great Northern Ry. Co., 26 L. J. Ex. 20, 23; 1 H. & N. 408, 410; per Willes, J., Smith v. Woodfine, 1 C. B. N. S. 660, 668; Berry v. Da Costa, L. Rep. 1 C. P. 331; 35 L J. C. P. 191. (d) Per Maule, J., Cockburn v. Alexander, 6 C. B. 791, 814. time when the contract was broken (a). But where money has been paid as the consideration for a promise which has wholly failed, as a general rule, the money so paid may be recovered under an implied contract to that effect (b). There may be claimed and assessed as damages, not only the loss which has already actually accrued, but also the prospective loss which it is reasonably certain will happen in futuro (c); for example, where the costs of an action occasioned by the defendant's wrong are recoverable as damage, the liability to pay such costs, before they are actually paid, may be assessed (d). damage. Every breach of contract, as being an infringement of a Nominal right, imports some damage in law; so that, if the plaintiff succeeds in establishing a breach of contract, but fails in showing any appreciable damage in fact occasioned by it, he is nevertheless entitled in law to judgment for damages, which, as they exist only in name and not in amount, are called nominal (e). "Nominal damages, in fact, mean a sum of money that may be spoken of, but that has no existence in point of quantity." They have also been called "a mere peg on which to hang costs," meaning thereby that the plaintiff may be entitled to sue for nominal damages for the purpose only of recovering his costs (f). In an action for the non-payment of a debt or liquidated demand in money the general measure of damages is the amount of the debt or demand, together with the amount of interest, if any interest is payable. The damages for the mere detention of the debt beyond the day of payment are nominal; that is to say, the creditor is entitled to bring an action for the detention of the debt, but is not entitled to recover more than the amount of the debt and interest, and (a) Brady v. Oastler, 3 H. & C. 112; 33 L. J. Ex. 300. (b) See per Martin, B., ib. ; and see ante, p. 60. (c) Richardson v. Mellish, 2 Bing. 229; Nicklin v. Williams, 10 Ex. 259; Hodsoll v. Stallebrass, 11 A. & E. 301. (d) See post, p. 600. (e) Marzetti v. Williams, 1 B. & Ad. 415; Wilde v. Clarkson, 6 T. R. 303; Warre v. Calvert, A. & E. 143; per Tindal, C.J., Godefroy v. Jay, 7 Bing. 413, 419; Sowdon v. Mills, 30 L. J. Q. B. 175. (f) Per Maule, J., Beaumont v. Greathead, 2 C. B. 494, 499; and see ante, p. 472. |