DAMAGES, practice. The indemnity given by law, to be recovered from a wrong
doer by the person who has sustained an injury, either in his person,
property, or relative rights, in consequence of the acts of another.
2. Damages are given either for breaches of contracts, or for tortious
3. Damages for breach of contract may be given, for example, for the
non-performance of a written or verbal agreement; or of a covenant to do or
not to do a particular thing.
4. As to the measure of damages the general rule is that the delinquent
shall answer for all the injury which results from the immediate and direct
breach of his agreement, but not from secondary and remote consequences.
5. In cases of an eviction, on covenant of seisin and warranty, the
rule seems to be to allow the consideration money, with interest and costs.
6 Watts & Serg. 527; 2 Dev. R. 30; 3 Brev. R. 458. See 7 Shepl. 260; 4 Dev.
46. But in Massachusetts, on the covenant of warranty, the measure of
damages is the value of the land at the time of eviction. 4 Kent's Com. 462,
3, and the cases there cited; 3 Mass. 523; 4 Mass. 108; 1 Bay, 19, 265; 3
Desaus. Eq. R. 247; 4 Penn. St. R. 168.
6. In estimating the measure of damages sustained in consequence of the
acts of a common carrier, it frequently becomes a question whether the value
of the goods at the place of embarkation or the port of destination is the
rule to establish the damages sustained. It has been ruled that the value at
the port of destination is the proper criterion. 12 S. & R. 186;. 8 John. R.
213; 10 John. R. 1; 14 John. R. 170; 15 John. R. 24. But contrary decisions
have taken place. 3 Caines, R. 219 4 Hayw. R. 112; and see 4 Mass. R. 115; 1
T. R. 31; 4 T. R. 582.
7. Damages for tortious acts are given for acts against the person, as
an assault and battery against the reputation, as libels and slander,
against the property, as trespass, when force is used; or for the
consequential acts of the tort-feasor, as, when a man, in consequence of
building a dam on his own premises, overflows his neighbor's land; or
against the relative rights of the party injured, as for criminal
conversation with his wife.
8. No settled rule or line of distinction can be marked out when a
possibility of damages shall be accounted too remote to entitle a party to
claim a recompense: each case must be ruled by its own circumstances. Ham.
N. P. 40; Kames on Eq. 73, 74. Vide 7 Vin. Ab. 247; Yelv. 45, a; Id. 176, a;
Bac. Ab. h.t.; 1 Lilly's Reg. 525; Domat, liv. 3, t. 5, s. 2, n. 4; Toull.
liv. 3, n. 286; 2 Saund. 107, note; 1 Rawle's Rep. 27; Coop. Just. 606; Com.
Dig. 11. t.; Bouv. Inst. Index, h.t. See, Cause; Remote.
9. Damages for torts are either compensatory or vindictive. By
compensatory damages is meant such as are given morely to recompense a party
who has sustained a loss in consequence of the acts of the defendant, and
where there are no circumstances to aggravate the act, for the purpose of
compensating the plaintiff for his loss; as, for example, Where the
defendant had caused to be seized, property of A for the debt of B, when
such property was out of A's possession, and there appeared reason to
believe it was B's. Vindictive damages are such as are given against a
defendant, who, in addition to the trespass, has been guilty of acts of
outrage and wrong which cannot well be measured by a compensation in money;
as, for example, where the defendant went to A's house, and with insult and
outrage seized upon A's property, for a debt due by B, and carried it away,
leaving A's family in distress. Sedgw. on Dam. 39; 2 Greenl. Ev. Sec. 253; 1
Gillis. 483; 12 Conn. 580; 2 M. & S. 77; 4 S. & R. 19; 5 Watts, 375; 5 Watts
& S. 524; 1 P. S. R. 190, 197.
10. In cases of loss of which have been insured from maritime dangers,
when an adjustment is made, the damages are settled by valuing the property,
not according to prime cost, but at the price at which it may be sold at the
time of settling the average. Marsh. Inst. B. 1, c. 14, s. 2, p. 621. See
DAMAGES, EXCESSIVE. Such damages as are unreasonably great, and not
warranted by law.
2. The damages are excessive in the following cases: 1. When they are
greater than is demanded by the writ and declaration. 6 Call 85; 7 Wend.
330. 2. When they are greater than is authorized by the rules and principles
of law, as in the case of actions upon contracts, or for torts done to
property, the value of which may be ascertained by evidence. 4 Mass. 14; 5
Mass. 435; 6 Halst. 284.
3. But in actions for torts to the person or reputation of the
plaintiff, the damages will not be considered excessive unless they are
outrageous. 2 A. K. Marsh 365; Hard. 586; 3 Dana, 464; 2 Pick. 113; 7 Pick.
82; 9 John. 45; 10 John. 443; 4 Mass. 1; 9 Pick. 11; 2 Penn. 578.
4. When the damages are excessive, a new trial will be granted on that
DAMAGES, DOUBLE or TREBLE, practice. In cases where a statute gives a party
double or treble damages, the jury are to find single damages, and the court
to enhance them, according to the statute Bro. Ab. Damages, pl. 70; 2 Inst.
416; 1 Wils. 126; 1 Mass. 155. In Sayer on Damages, p. 244, it is said, the
jury may assess the statute damages and it would seem from some of the
modern cases, that either the jury or the court may assess. Say. R. 214; 1
DAMAGES, GENERAL, torts. General damages are such as the law implies to have
accrued from the act of a tort-feasor. To call a man a thief, or commit an
assault and battery upon his person, are examples of this kind. In the first
case the law presumes that calling a man a thief must be injurious to him,
with showing that it is so. Sir W. Jones, 196; 1 Saund. 243, b. n. 5; and in
the latter case, the law implies that his person has been more or less
deteriorated, and that the injured party is not required to specify what
injury he has sustained, nor to prove it. Ham. N. P. 40; 1 Chit. Pl. 386; 2
L.R. 76; 4 Bouv. Inst. n. 3584.
DAMAGES, LAYING, pleading. In personal and mixed actions, (but not in penal
actions, for obvious reason,) the declaration must allege, in conclusion,
that the injury is to the damage of the plaintiff; and must specify the
amount of damages. Com. Dig. Pleader, C 84; 10 Rep. 116, b.
2. In personal actions there is a distinction between actions that
sound in damages, and those that do not; but in either of these cases, it is
equally the practice to lay damages. There is, however, this difference:
that, in the former case, damages are the main object of the suit, and are,
therefore, always laid high enough to cover the whole demand; but in the
latter, the liquidated debt, or the chattel demanded, being the main object,
damages are claimed in respect of the detention only, of such debt or
chattel; and are, therefore, usually laid at a small sum. The plaintiff
cannot recover greater damages than he has laid in the conclusion of his
declaration. Com. Dig. Pleader, C 84; 10 Rep. 117, a, b; Vin. Ab. Damages,
3. In real actions, no damages are to be laid, because, in these, the
demand is specially for the land withheld, and damages are in no degree the
object of the suit. Steph. Pl. 426; 1 Chit. Pl. 397 to 400.
DAMAGES, LIQUIDATED, contracts. When the parties to a contract stipulate for
the payment of a certain sum, as a satisfaction fixed and agreed upon by
them, for the not doing of certain things particularly mentioned in the
agreement, the sum so fixed upon is called liquidated damages. (q.v.) It
differ from a penalty, because the latter is a forfeiture from which the
defaulting party can be relieved. An agreement for liquidated damages can
only be when there is an engagement for the performance of certain acts, the
not doing of which would be an injury to one of the parties; or to guard
against the performance of acts which, if done, would also be injurious. In
such cases an estimate of the damages may be made by a jury, or by a
previous agreement between the parties, who may foresee the consequences of
a breach of the engagement, and stipulate accordingly. 1 H. Bl. 232; and
vide 2 Bos. & Pul. 335, 350-355; 2 Bro. P. C. 431; 4 Burr, 2225; 2 T. R. 32.
The civil law appears to agree with these principles. Inst. 3, 16, 7; Toull.
liv. 3, n. 809; Civil Code of Louis. art. 1928, n. 5; Code Civil, 1152,
2. It is to be observed, that the sum fixed upon will be considered as
liquidated damages, or a penalty, according to the intent of the parties,
and the more use of the words "penalty," &c "forfeiture," or "liquidated
damages," will not be regarded is at all decisive of the question, if the
instrument discloses, upon the whole, a different intent. 2 Story, Eq. Sec.
1318; 6 B.& C. 224; 6 Bing. 141; 6 Iredell, 186; 3 Shepl. 273; 2 Ala. 425;
8 Misso. 467.
3. Rules have been adopted to ascertain whether such sum so agreed upon
shall be considered a penalty or liquidated damages, which will be here
enumerated by considering, first, those cases where it has been considered
as a penalty and, secondly, where it has been considered as liquidated
4.-1. It has been treated as penalty, 1st. where the parties in the
agreement have expressly declared the sum intended as a forfeiture or a
penalty, and no other intent can be collected from the instrument. 2 B. & P,
340, 350, 630; 1 McMullan, 106; 2 Ala. 425; 5 Metc. 61; 1 H. Bl. 227; 1
Campb. 78; 7 Wheat. 14; 1 Pick. 451; 4 Pick. 179; 3 Johns. Cas. 297. 2d.
Where it is doubtful whether it was intended as a penalty or not, and a
certain debt or damages, less than the penalty, is made payable on the face
of the instrument. 3 C. & P. 240; 6 Humph. 186. 3d. Where the agreement was
made, evidently, for the attainment of another object, to which the sum
specified is wholly collateral. 11 Mass. 76; 15 Mass. 488; 1 Bro. C. C. 418.
4th. Where the agreement contains several matters, of different degrees of
importance, and yet the sum named is payable for the breach of any, even the
least. 6 Bing. 141; 5 Bing. N. C. 390; 7 Scott, 364; sed vide, 7 John. 72;
15 John. 200. 5th. Where the contract is not under seal, and the damages are
capable of being certainly known and estimated. 2 B. & Al. 704; 6 B. & C.
216; 1 M. & Malk. 41; 4 Dall. 150; 5 Cowen, 144.
5.-2. The sum agreed upon has been considered as liquidated damages,
1st. Where the damages are uncertain, and are not capable of being
ascertained by any satisfactory and known rule. 2 T. R. 32; 1 Alc. & Nap.
389; 2 Burr, 2225; 10 Ves. 429; 3 M. & W. 545; 8 Mass. 223; 3 C. & P. 240; 7
Cowen 307; 4 Wend. 468. 2d. Where, from the tenor of the agreement, or from
the nature of the case, it appears that the parties have ascertained the
amount of damages by fair calculation and adjustment. 2 Story, Eq. Juris.
Sec. 1318; 10 Mass. 459; 7 John. 72; 15 John. 200; 1 Bing. 302; 7 Conn. 291;
13 Wend. 507; 2 Greenl. Ev. Sec. 259; 11 N. H. Rep. 234; 6 Blackf. 206; 26
Wend. 630; 17 Wend. 447; 22 Wend. 201; 7 Metc. 583; 2 Ala. 425; 2 Shepl.
Vide, generally, 7 Vin. Ab. 247; 16 Vin. Ab. 58; 2 W. Bl. Rep. 1190;.
Coop. Just. 606; 1 Chit. Pr. 872; 2 Atk. 194; Finch. 117; Prec. in Ch. 102;
2 Bro. P. C. 436; Fonbl. 151, 2, note; Chit. Contr. 836; 11 N. Hamp. Rep.
DAMAGES, SPECIAL, torts. Special damages are such as are in fact sustained,
and are not implied by law; these are either superadded to general damages,
arising from an act injurious in itself, as when some particular loss
arises. from the uttering of slanderous words, actionable in themselves, or
are such as arise from an act indifferent and not actionable in itself, but
injurious only in its consequences, as when the words become actionable only
by reason of special damage ensuing. To constitute special damage the legal
and natural consequence must arise from the tort, and not be a mere wrongful
act of a third person, or a remote consequence. 1 Camp. 58; Ham. N. P. 40; 1
Chit. Pl. 385, 6.
DAMAGES, SPECIAL, pleading. As distinguished from the gist of the action,
signify that special damage which is stated to result from the gist; as, if
a plaintiff in an action of trespass for breaking his close, entering his
house, and tossing his goods about, were to state that by means of the
damage done to his house, he was obliged to seek lodging elsewhere.
2. Sometimes the special damage is said to constitute the gist of the
action itself; for example, in an action wherein the plaintiff declares for
slanderous words, which of themselves are not a sufficient ground or
foundation for the suit, if any particular damage result to the plaintiff
from the speaking of them, that damage is properly said to be the gist of
3. But whether special damage be the gist of the action, or only
collateral to it, it must be particularly stated in the declaration, as the
plaintiff will not otherwise be permitted to go into evidence of it at the
trial, because the defendant cannot also be prepared to answer it. Willes,
23. See Gist.
DAMAGES, UNLIQUIDATED. The unascertained amount which is due to a person by
another for an injury to the person, property, or relative rights of the
party injured. These damages, being unknown, cannot be set off against the
claim which the tort feasor has against the party injured. 2 Dall. 237; S.
C. 1 Yeates, 571; 10 Serg. & Rawle 14; 5 Serg. & Rawle 122.amends
, blood money
, smart money