deterred from appearing on the stage, and the plaintiff lost his profits; such loss was held to be too remote to be the ground of an action for damages. In Smeed v. Foord (1 Ellis and Ellis, 602), the defendant contracted to deliver a threshing-machine to the plaintiff, a farmer, knowing that it was needed to thresh the wheat in the field. Damages were sought for injury done to the wheat by rain in consequence of the machine not having been delivered in time, and also for a fall in the market before the grain could be got ready. It was held that the first claim was good, as the injury might have been anticipated, but that the second was bad. When, through the negligence of a railway company in delivering bales of cotton, the plaintiffs, having no cotton to work with, were obliged to keep their workmen unemployed, it was held that the wages paid and the profits lost were too remote for damages. On the other hand, where the defendant failed to keep funds on hand to meet the drafts of the plaintiff, so that a draft was returned dishonoured, and his business in consequence was for a time suspended and injured, the plaintiff was held entitled to recover damage for such loss.
The rule that the contract furnishes the measure of the damages does not prevail in the case of unconscionable, i.e. unreasonable, absurd or impossible contracts. The old school-book juggle in geometrical progression has more than once been before the courts as the ground of an action. Thus, when a man agreed to pay for a horse a barley-corn per nail, doubling it every nail, and the amount calculated as 32 nails was 500 quarters of barley, the judge directed the jury to disregard the contract, and give as damages the value of the horse. And when a defendant had agreed for £5 to give the plaintiff two grains of rye on Monday, four on the next Monday,[1] and so on doubling it every Monday, it was contended that the contract was impossible, as all the rye in the world would not suffice for it; but one of the judges said that, though foolish, it would hold in law, and the defendant ought to pay something for his folly. And when a man had promised £1000 to the plaintiff if he should find his owl, the jury were directed to mitigate the damages.
Interest is recoverable as damages at common law only upon mercantile securities, such as bills of exchange and promissory notes or where a promise to pay interest has been made in express terms or may be implied from the usage of trade or other circumstances [Mayne, Damages (7th ed.) 166]. Under the Civil Procedure Act 1833, the jury is allowed to give interest by way of damages on debts or sums payable at a certain time, or if not so payable, from the date of demand in writing, and in actions on policies of insurance, and in actions of tort arising out of conversion or seizure of goods.
In the United States, interest is in the discretion of the court, and is made to depend on the equity of the case. In both England and America compound interest, or interest on interest, appears to have been regarded with the horror that formerly attached to usury. Lord Eldon would not recognize as valid an agreement to pay compound interest. And Chancellor Kent held that compound interest could not be taken except upon a special agreement made after the simple interest became due.
In Scotland compound interest is not allowed by way of damages.
Torts.—In actions arising otherwise than from breach of contract (i.e. of tort, delict or quasi-delict), the principles applied to the assessment of damage in cases arising ex contractu are generally applicable (The Notting Hill, 1884, 9 P.D. 105); but from the nature of the case less precision in assessment is attainable. The remoteness of the damage claimed is a ground for excluding it from the assessment. In some actions of tort the damages can be calculated with exactness just as in cases of contract, e.g. in most cases of interference with rights of property or injury to property. Thus, for wrongful dispossession from a plantation (in Samoa) it was held that the measure of damage was the annual value of the produce of the lands when wrongfully seized, less the cost of management, and that the wilful character of the seizure did not justify the infliction of a penalty over and above the loss to the plaintiff (McArthur v. Cornwall, 1892, A.C. 75). Where minerals are wrongfully severed and carried away, the damage is assessed by calculating the value of the mineral as a chattel and deducting the reasonable expense of getting it. But where the interference with property, whether real or personal, is attended by circumstances of aggravation such as crime or fraud or wanton insult, it is well established that additional damages may be awarded which in effect are penal or vindictive. In actions for injuries to the person or to reputation, it is difficult to make the damages a matter for exact calculation, and it has been found impossible or inexpedient by the courts to prevent juries from awarding amounts which operate as a punishment of the delinquent rather than as a true assessment of the reparation due to the sufferer. And while a bad motive (malice) is seldom enough to give a cause of action, proof of its existence is a potent inducement to a jury to swell the assessment of damages, as evidence of bad character may induce them to reduce the damages to a derisory amount. In the case of injuries to the person caused by negligence, the tribunal considers, as part of the general damage, the actual pain and suffering, including nervous shock (but not wounded feelings) and the permanent or temporary character of the injury, and as special damage the loss of time and employment during recovery and the cost of cure. It is difficult by any arithmetical calculation to value pain and suffering; nor is it easy to value the effect of a permanent injury; and in the Workmen’s Compensation Act and Employers’ Liability Act, an attempt has been made in the case of workmen to assess by reference to the earnings of the injured person.
In the case of such wrongs as assault, arrest or prosecution, the motives of the defendant naturally affect the amount of general damage awarded, even when not essential elements in the case, and the damages are “at large.” Any other rule would enable a man to distribute blows as he can utter curses at a statutory tariff of so much a curse, according to his rank. This position was strongly asserted in the cases arising out of the celebrated “General Warrants” (1763) in the time of Lord Camden, who is reported in one case to have said, “damages are designed not only as a satisfaction to the injured person, but as a punishment to the guilty, and as a proof of the detestation in which the wrongful act is held by the jury.” In another case he mentioned the importance of the question at issue, the attempt to exercise arbitrary power, as a reason why the jury might give exemplary damages. Another judge, in another case, said “I remember a case when the jury gave £500 damages for knocking a man’s hat off; and the court refused a new trial.” And he urged that exemplary damages for personal insult would tend to prevent the practice of duelling.
The right to give exemplary or punitive or (as they are sometimes called) vindictive damages is fully recognized both in England and in the United States, and especially in the following cases. (1) Against the co-respondent in a divorce suit. This right is the same as that recognized at common law in the abolished action of criminal conversation, but the damages awarded may by the court be applied for the maintenance and education of the children of the marriage or the maintenance of the offending wife. (2) In actions of trespass to land where the conduct of the defendant has been outrageous. (3) In actions of defamation spoken or written, attended by circumstances of aggravation, and the analogous action of malicious prosecution. (4) In the anomalous actions of seduction and breach of promise of marriage.
In actions for wrongs, as in those ex contractu, the damages may be general or special. In a few cases of tort, the action fails wholly if special damage is not proved, e.g. slander by imputing to a man vicious, unchaste or immoral conduct, slander of title to land or goods or nuisance.
In theory, English law does not recognize “moral or intellectual” damage, such as was claimed by the South African Republic after the Jameson Raid. The law of Scotland allows
- ↑ Quolibet alio die lunae, which was translated by some every Monday, and by others every other Monday. The amount in the latter case would have been 125 quarters, in the former 524,288,000 quarters.
