the amounts in which he was liable to his own vendee, he was held entitled only to the expenses of investigating the title, and nominal damages for the breach, because no fraud was imputable to the defendant.'

Where the breach is the act of the purchaser, the measure is the difference between the price fixed by the agreement, and the market value at the time when the purchase ought to have been completed. Accordingly, the damages will be nominal when these amounts are identical. Thus, where the defendant, after agreeing to purchase land, had been let into possession, and had derived profits from its produce, but had subsequently refused to complete the purchase; it was held that the plaintiff was not entitled to recover the whole purchase money, but only such damages as had resulted from the defendant's breach of the contract, and that these were properly measured by a verdict for the interest on the purchase money from the time of the breach up to the commencement of the action, added to the value of the profit which the defendant had derived from the land. Parke, B. said: "The measure of damages in an action of this nature is the injury sustained by the plaintiff, by reason of the defendants not having performed their contract. The question is, how much worse is the plaintiff by the diminution in the value of the land, or the loss of the purchase-money in consequence of the non-performance of the contract. It is clear he cannot have the land and its value too. A party cannot recover the full value of a chattel, unless under circumstances which import that the property has passed to the defendant; as in the case of goods sold and delivered, where they have been absolutely parted with, and cannot be sold again."2

The breach of a contract constitutes in every case a title to damages; but they will be measured by the actual loss, and be only nominal where none has been

1 Walker v. Moore, 10 B. & C. 416.

2 Laird v. Pim, 7 M. & W. 474.

sustained. In this respect the rule in contracts is very different from the rule in tort, where an injury which affects merely the feelings of the claimant may be the ground of heavy damages. But there are cases where the breach of a contract may be in the nature of a tort, and in which it is not necessary to prove substantial damage in order to recover high damages; and where, accordingly, there is no measure of damages beyond the discretion of the jury in estimating the circumstances of the case. Thus, in actions for breach of promise of marriage, the measure of damages is in the discretion of the jury; and no verdict will be set aside on the ground that the amount awarded is excessive, unless it be shown that the jury have been influenced by passion, prejudice, or corruption.3 Thus, also, in an action against a banker for refusing to pay a cheque, while he has assets of the plaintiff in his hands; the plaintiff is entitled, not only to nominal but to substantial damages, although he may not have sustained any actual damage.5 Accordingly, it was held in Rolin v. Steward, where the plaintiffs were merchants, that the judge was right in telling a jury to give "not nominal nor excessive, but reasonable and temperate damages;" and that, considering the tendency of such a refusal to injure the credit of the plaintiffs, 500l. were not excessive damages, although no actual damage was proved.6

But it is only where the breach of contract assumes the nature of a tort, by a manifest tendency to injure the plaintiff in his character or profession, that the motives of the defendant, or the feelings of the plaintiff, ought to be considered in measuring damages. Thus, in actions for wrongfully dismissing servants or clerks during the continuance of a term, the damages should

1 Alderson, B., 7 M. & W. 478.

2 Sedgwick, pp. 53 to 62, 1 B. & Ad. 423. Sedgwick, p. 385.

4 Marzetti v. Williams, 1 B. & Ad. 425.

5 Rolin v. Steward, 23 L. J. 148, C. P.

6 Sedgwick, pp. 206 to 214; Erle, J., 2 H. L. Cas. 607.

"The

be such as to indemnify for the loss of wages during the time necessarily spent in obtaining a fresh situation, and for the loss of the excess of any wages contracted for above the usual rate; but no allowance should be made in the nature of a pretium affectionis, or of compensation for the injury done to the sensibilities of a plaintiff. Erle, J. has said that in such a case, measure of damages for the breach of promise is obtained by considering what is the usual rate of wages for the employment here contracted for, and what time would be lost before a similar employment could be obtained. The law considers that employment in any ordinary branch of industry can be obtained by a person competent for the place, and that the usual rate of wages for such employment can be proved; and that where a promise for continuing employment is broken by the master, it is the duty of the servant to use diligence to find another employment." Accordingly, the same learned judge has said, "that where equally eligible employment is at his option, the indemnity for the loss by breach of contract would be a small amount; but, if the circumstances are reversed, the employment under the contract may be such that the damages may exceed the salary.3

3"

In actions against a co-contractor for contribution to a debt which the plaintiff alone has been compelled to pay, the damages will be measured by the number of the original parties to the contract; and the plaintiff will be entitled to an aliquot portion from each cocontractor, calculated according to the original interests of each.4

In use and occupation, where there is no express agreement as to rent, the value of the premises must be proved, and will be the measure of damages.5

1 Sedgwick, pp. 206 to 214.

2 Beckham v. Drake, 2 H. L. Cas. 607; assent. Crompton, J., 13 C. B. 508.

3 Emmens v. Elderton, 13 C. B. 519. 4 Batard v. Hawes, 2 E. & B. 287.

5 Tomlinson v. Day, 2 B. & B. 680.

Where there is a stipulated rent by agreement or deed, and the defendant holds over after the expiration of his term, he will be considered to hold on the terms of the original tenancy, unless there be anything to show a different understanding.1

Interest at common law can only be given as damages in cases where there has been an express promise to pay interest; or a promise implied from the usage of trade, or other circumstances.2 But by 3 & 4 Will. 4, c. 42, s. 28, upon all debts, or sums certain, payable at a certain time or otherwise, the jury, on the trial of an issue, or on any inquisition of damages, may, if they think fit, allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time; or, if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the time of payment.

The measure of damages in actions against carriers, is regulated by the principles already stated in Hadley v. Baxendale.3

THE MEASURE OF DAMAGES IN ACTIONS OF TORT.

The measure of damages in actions of tort, which include neither fraud, malice, nor negligence so gross as to amount to malice, is regulated, as in actions of contract, by the principle of awarding compensation to the injured party. But when a tort is accompanied by any of these circumstances of aggravation, juries may, and ought to, take into consideration such fraud,

malice, or negligence, and award, not merely compensatory, but exemplary or vindictive, damages; in doing which their only safe guide will be a discretion which must be regulated by the facts of each particular

case.

Thus, in the case already cited, of a banker refusing to pay his creditor's cheque for 110l.; consideration for the peculiar injury which such a refusal was likely to inflict on the credit of the plaintiff as a merchant, was held sufficient ground for awarding 500l. damages.1 Thus also it is held that in actions for injuries to the personal reputation, there can be no certain measure of damages but the particular circumstances of the case under consideration. So, in an action for throwing poisoned barley on the plaintiff's premises, in order to poison his poultry, the jury were told, not to confine their verdict to the actual damages sustained, but to consider besides the malicious intention of the defendant.3 But if the jury travel out of the case, or in matters which admit of certain estimation, are influenced by prejudice, to award damages which are manifestly excessive, the verdict will be set aside,1 although, in general, a court will not disturb a verdict where there is no certain measure of damages.5 In such cases, where no rule of damages can be declared the assessment must be left entirely to the jury, and the functions of the court will be confined to the reception and exclusion of evidence, when offered either in aggravation or mitigation, and to a definition of the distinction between direct and consequential damage.

6

These principles are well illustrated in Merest v. Harvey. There the defendant, who was a banker,