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making the contract; but nothing in this section applies to contracts for the payment of money only.'

1 Per MARCY, J., Armstrong v. Perry, 5 Wend., 535, 538.

2 Code of Louisiana, Arts. 1928, 2294, 2295.

3 Sedgwick Dam., 112.

resulting or

after suit

§ 1497. Damages may be given for loss or harm which Injuries resulted after the commencement of the action or which cer- probable tainly will result in the future; except that no damages can be awarded for the merely probable consequences of a breach of contract.

Sedgwick Dam., 104; Wilcox v. Ex'crs of Plummer, 4
Peters, 172, 182.

§ 1498. No damages can be given for a mere part performance of an obligation under an entire contract, except as hereinafter provided in the Title on SPECIFIC RELIEF. 18 Wend., 187; 5 Denio, 406, and cases cited.

brought.

Partial

breach.

ARTICLE II.

INTEREST AS DAMAGES.

SECTION 1499. Interest, where there is an agreement to pay it.

1500. Interest on default in contract.

1501. In actions other than on contract.

1502. Limit of rate by contract.

§ 1499. Interest is always properly chargeable as dama- Interest ges when there is either an express or an implied agreement to pay it.'

Meech v. Smith, 7 Wend., 315.

§ 1500. Where a debtor is in default for not paying money, delivering property or rendering services on or before a day certain, in pursuance of his contract, whether the value is liquidated or not, he is liable for interest thereon from such day.' Where a demand is necessary to put the debtor in default, except in the case of loans or advances of money, interest is to be given only from the demand.

1 Van Rensselaer v. Jewett, 2 N. Y., 141; Livingston v.
Miller, 11 N. Y., 80; Purdy v. Phillips, 11 N. Y., 406;
1 Duer, 369.

where there is an agreement to pay it.

Interest on contract.

default in

In actions

other than

§ 1501. In actions arising from causes other than conon contract. tract, and in all cases of oppression, fraud, or malice, interest may be given, in the discretion of the jury.'

Limit of rate by contract.

1 Sedgwick on Dam., 385, 386.

2 Wilson v. Conine, 2 Johns., 280; Bissel v. Hopkins, 4 Cow., 53; Hyde v. Stone, 7 Wend., 354; Baker v. Weller, 8 Wend., 504; Dillerback v. Jerome, 7 Cow., 294.

§ 1502. On a contract to pay with interest, at a less rate than the lawful limit, the creditor, after a breach, is not entitled to the full lawful interest, except in case of fraud,' but the rate is governed by the contract, until it ceases by being merged in a new obligation.'

1 Miller v. Burroughs, 4 Johns. Ch., 436; Van Beuren v. Van Gaasbeck, Cow., 496.

2 Lawrence v. Leake & Watts Orphan House, 2 Den., 577.

ARTICLE III.

Exemplary damages, in what cases allowed.

EXEMPLARY DAMAGES.

SECTION 1503. Exemplary damages, in what cases allowed.

§ 1503. In all cases of oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give exemplary, or vindictive, damages,' for example's sake, and by way of punishing the defendant."

In this we have followed the doctrine established by the Court of Appeals (Hunt v. Bennett, 19 N. Y., 173; and see Fry v. Bennett, 1 Abb. Pr., 289; 4 Duer, 247; and cases. S. P., Cabel v. Denkin, 20 Wend., 172; Brizsee v. Maybee, 21 id. 144); but, upon principle, there seems no reason why it should be preserved.

2 Tillotson v. Cheatham, 3 Johns., 56, 64.

CHAPTER II.

MEASURE OF DAMAGES.

SECTION 1504. General test of the measure of damages.
1505. Measure of damages in certain cases:

1. Breach of covenants of warranty and quiet enjoy-
ment in grants of real property;

2. Seisin and right to convey;

3. Against incumbrances;

4. Covenant to convey land;

5. Covenant to buy land;

6. Warranty of personal property;

7. Breach of contract of sale of personal property by
seller;

8. Breach of contract of sale of personal property by

buyer;

9. Breach of carrier's contract;

10. Losses under policies of marine insurance;

11. Breach of promise of marriage;

12. Breach of obligation to pay liquidated sum;

13. Dishonor of bills of exchange;

14. Breaches of other contracts;

15. Wrongful occupation of real property;

16. Unlawful entries on land, &c.; erection of nuisances;
17. Forcible exclusion from possession of real property;
18. Injuries to trees, &c.;

19. Wrongful sale of a pledge;

20. Wrongful conversion of personal property;

21. Injuries to animals.

1506. Cases of fraud, oppression and malice.

test of the

that General But measure of

§ 1504. The measure of damages is, in general, amount which will compensate for the injury suffered. greater damages may be awarded, as provided in section 1503, whenever an unlawful act or omission, which has caused actual damage, is accompanied by oppression, fraud or malice, actual or presumed; and in cases of seduction or breach of promise of marriage. And where an unlawful act or omission has caused no loss to the plaintiff, he may yet have nominal damages.

damages.

§ 1505. In the following cases, the measure of damages Measure of is as follows:

1. For breach of covenants of warranty and of quiet enjoyment in conveyances of real property, the value of

damages in

certain cases.

Breach of warranty

covenant of

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the property at the time of the conveyance,' with interest thereon for such time as the grantee has derived no benefit from the property, and his expenses in defending the possession. When the eviction is from only a part of the premises the rule is the same, substituting for the value of the whole the value of such part at the time of the conveyance, taken in proportion to the value of the whole.' Sedgwick Dam., 159; Staats v. Ten Eyck's Exrs., 3 Caines, 111.

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2. For breach of covenants of seisin and right to convey the consideration paid with interest during such time as the grantee derived no benefit from the property.' 'Sedgwick Dam., 175, 177.

3. For breach of covenants against incumbrances, the sum actually expended by the grantee in extinguishing the same; or when the incumbrances are still outstanding, [and not in the grantee's power to extinguish them] then the annual interest on the purchase money during the continuance of such incumbrance.*

1 Sedgwick Dam., 178; Delavergne v. Norris, 7 Johns., 358; but see 10 Wend., 142.

Rickett v. Snyder, 9 Wend., 423.

4. For a breach of covenant to convey, in the absence of bad faith, the purchase money paid;' but adding thereto, in case of fraud, the damages arising from the loss of the bargain.'

'Sedgwick Dam., 186. See Conger v. Weaver, 20 N. Y., 140.

2 Trull v. Granger, 8 N. Y., 115; Brinkerhoff v. Phelps, 24 Barb., 100; Sedgwick, 210.

5. For a breach of a covenant to buy land, the agreed price with interest.'

'Franchot v. Leach, 5 Cow., 506; Richards v. Edick, 17 Barb., 260.

6. For a breach of warranty of personal property sold, the difference in value of the property as it is and as it was warranted to be.'

Tallman v. Clute, 3 Barb., 424; Cary v. Gruman, 4 Hill, 625; Comstock v. Hutchinson, 10 Barb., 211; Roberts v. Carter, 28 Barb., 462; Milburn v. Belloni, 12 Abb. Pr., 451. This rule may need some qualification, as it scarcely does justice in cases where an article is warranted fit for a particular purpose.

7. For a breach of contract of sale of personal property by the seller, the difference between the contract price and the market value at the time and place,' when and where it should have been delivered,' with interest on that difference; but if the buyer has paid the purchase money in advance, then the highest market price at any time [between the agreed time of delivery] and the settlement of the question [at the place of delivery.]

1 Gregory v. McDowell, 8 Wend., 485.

Sedgwick Dam., 260, 265; but see Suydam v. Jenkins,
3 Sandf., 614; Burden v. Nicolai, 4 E. D. Smith, 14.
3 Dana v. Fiedler, 12 N. Y., 41.
Sedgwick Dam., 261, 264, 265.

8. For the like breach by the buyer, the price named in the contract, if the property has been delivered,' or has not been resold by the seller;' if resold, then the difference between the price agreed and the price obtained at such resale.❜

'Sedgwick Dam., 280.

' Hall v. Bigelow, 20 Barb., 21; Bement v. Smith, 15
Wend., 493.

Bement v. Smith, 15 Wend., 493.

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carrier's

9. For a breach of a carrier's contract to deliver personal Breach of property, the market value thereof at the place [and on contract. the day] agreed upon for delivery,' with interest from that day, deducting freight and other expenses of transporta tion;'

Smith v. Griffith, 3 Hill, 333; Kent v. H. R. R. R. Co.,
22 Barb., 278.

'Sedgwick on Damages, 365; Sherman v. Wells, 28
Barb., 403.

3 Sherman v. Wells, 28 Barb., 403; Atkisson v. Steamboat
Castle Garden, 28 Mis., 124.

10. For losses, under policies of marine insurance, when the loss is partial, the actual cost of repair, deducting onethird as provided in the chapter on Marine Insurance. In total losses the value is ascertained by deducting from the value, at the time of sailing, one-fifth; and the freight money must contribute on one-half, and be contributed for on the whole.

Leavenworth v. Delafield, 1 Caines, 573. But see Mutual
Safety Ins. Co. v. The George, 8 Law Rep., 361.

Losses unof marine

der policies

insurance.

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