h the wrongful conduct of another party.
Damages attempt to measure in financial terms the extent of harm a plaintiff has suffered because of a defendant's actions. Damages are distinguishable from costs, which are the expenses incurred as a result of bringing a lawsuit and which the court may order the losing party to pay. Damages also differ from the verdict, which is the final decision issued by a jury. The purpose of damages is to restore an injured party to the position the party was in before being harmed. As a result, damages are generally regarded as remedial rather than preventive or punitive. However, Punitive Damages may be awarded for particular types of wrongful conduct. Before an individual can recover damages, the injury suffered must be one recognized by law as warranting redress, and must have actually been sustained by the individual. The law recognizes three major categories of damages: Compensatory Damages, which are intended to restore what a plaintiff has lost as a result of a defendant's wrongful conduct; nominal damages, which consist of a small sum awarded to a plaintiff who has suffered no substantial loss or injury but has nevertheless experienced an invasion of rights; and punitive damages, which are awarded not to compensate a plaintiff for injury suffered but to penalize a defendant for particularly egregious, wrongful conduct. In specific situations, two other forms of damages may be awarded: treble and liquidated.
With respect to compensatory damages, a defendant is liable to a plaintiff for all the natural and direct consequences of the defendant's wrongful act. Remote consequences of a defendant's act or omission cannot form the basis for an award of compensatory damages. Consequential damages, a type of compensatory damages, may be awarded when the loss suffered by a plaintiff is not caused directly or immediately by the wrongful conduct of a defendant, but results from the defendant's action instead. For example, if a defendant carried a ladder and negligently walked into a plaintiff who was a professional model, injuring the plaintiff's face, the plaintiff could recover consequential damages for the loss of income resulting from the injury. These consequential damages are based on the resulting harm to the plaintiff's career. They are not based on the injury itself, which was the direct result of the defendant's conduct. The measure of compensatory damages must be real and tangible, although it can be difficult to fix the amount with certainty, especially in cases involving claims such as pain and suffering or emotional distress. In assessing the amount of compensatory damages to be awarded, a trier of fact (the jury or, if no jury exists, the judge) must exercise good judgment and common sense, based on general experience and knowledge of economics and social affairs. Within these broad guidelines, the jury or judge has wide discretion to award damages in whatever amount is deemed appropriate, so long as the amount is supported by the evidence in the case. A plaintiff can recover damages for a number of different injuries suffered as a result of another person's wrongful conduct. The plaintiff can recover for a physical impairment if it results directly from a harm caused by the defendant. The jury, in determining damages, considers the present as well as long-range effects of the disease or injury on the physical well-being of the plaintiff, who must demonstrate the disability with reasonable certainty. Compensatory damages can be awarded for mental impairment, such as a loss of memory or a reduction in intellectual capacity suffered as a result of a defendant's wrongful conduct. A plaintiff may recover compensatory damages for both present and future physical pain and suffering. Compensation for future pain is permitted when there is a reasonable likelihood that the plaintiff will experience it; the plaintiff is not permitted to recover for future pain and suffering that
For instance. as in the case of a salesperson paid by commission. and the mother suffers psychological trauma as a result. Today. and its judgment will be overturned only if it appears that the jury abused its discretion in reaching the decision. or done with extreme care-lessness or recklessness. A plaintiff may recover for loss of earnings resulting from an injury. and indignity. humiliation. nervousness. Evidence of past earnings can also be used to determine loss of future earnings. A plaintiff who is unable to accept a promotion to another job because of an injury would stand a better chance of recovering damages for loss of earnings. lost earnings that are speculative are not recoverable. In some jurisdictions. Mental pain and suffering includes fright. if an individual wrongfully and intentionally injures a child in the presence of the child's mother. most jurisdictions have modified this rule. A plaintiff can recover all reasonable and necessary expenses brought about by an injury caused by the wrongful acts of a defendant. although each case must be examined individually to determine whether damages can be established with reasonable certainty. a bystander can recover damages for mental distress caused by observing an event in which another person negligently. In other actions. allowing recovery for mental anguish alone where the act precipitating the anguish was willful or intentional. Historically.is speculative. although some jurisdictions may allow recovery if the injury was caused by the willful or malicious conduct of the defendant. The jury has broad discretion to award damages for pain and suffering. in view of his or her life expectancy. In a contract action. a plaintiff who bought a restaurant immediately before suffering an injury could not recover damages for the profits he might have made running it. grief. because such profits would be speculative. Expected profits that are uncertain or contingent upon fluctuating conditions would not be recoverable. Compensatory damages of an economic nature may also be recovered by an injured party. so long as that impairment is a direct and foreseeable consequence of a disabling injury of a permanent or lingering nature. Ordinarily. mental distress brought on by sympathy for the injury of another will not warrant an award of damages. Mental pain and suffering can be considered in assessing compensatory damages. Individuals injured by the wrongful conduct of another may also recover damages for impairment of earning capacity. the party who has been injured by another's breach can recover compensatory damages that include the reasonable expenses that result from reliance on the contract. nursing. Loss of profit is another element of compensatory damages. emotional trauma. and prescription drug costs. The measure of lost earnings is the amount of money that the plaintiff might reasonably have earned by working in her or his profession during the time the plaintiff was incapacitated because of the injury. for example. The amount of damages is determined by calculating the difference between the amount of money the injured person had the capacity to earn prior to the injury and the amount he or she is capable of earning after the injury. the
. allowing an individual to recover if such a loss can be established with sufficient certainty and is a direct and probable result of the defendant's wrongful actions. anxiety. For example. expenses awarded as part of compensatory damages may include medical. this amount can be determined by calculating the earnings that the injured party actually lost and multiplying that figure out to the age of retirement—with adjustments. the defendant can be liable for the mother's mental suffering. a plaintiff could not recover damages for mental pain and suffering without an accompanying physical injury. because the amount lost could be established with more certainty. the plaintiff's average earnings or general qualities and qualifications for the occupation in which she or he has been employed are considered. such as the cost of transporting perishable goods wrongfully refused by the other contracting party. If the amount of earnings actually lost cannot be determined with certainty. but not intentionally. In the case of a permanent disability. nor would they be awarded if no evidence existed from which they could be reasonably determined. As a general rule. causes harm to a family member.
such as one dollar. although the amount of damages to be awarded is an issue for the jury. If the court determines that the verdict is excessive in view of the particular circumstances of the case. if necessary. the court may review the award.. Ed.S. 2d 366 (1993). wanton. 125 L. Interest is ordinarily awarded from the date of default. 1. In a jury proceeding. Ct. which is set by the time stated in the contract for payment. And in TXO Production Corp. Kelco Disposal. the Court ruled that a punitive damages award that was 526 times the compensatory award did not violate due process. In the late twentieth century. Ct. it can order Remittitur. v. 2331. the constitutionality of punitive damages has been considered in several U. Both Haslip andTXO Production disappointed observers who hoped that the Court would place limits on large and increasingly common punitive damages awards. 2d 219). Constitution. vindictive. 512 U. the date a demand for payment is made.S. In a 1994 decision. 111 S.
Nominal damages are generally recoverable by a plaintiff who successfully establishes that he or she has suffered an injury caused by the wrongful conduct of a defendant.S. An award of punitive damages will usually not be disturbed on the grounds that it is excessive. Ct. For example. but to punish the wrongdoer and to act as a deterrent to others who might engage in similar conduct. malicious. The amount of punitive damages to be awarded lies within the discretion of the trier of fact. and the degree to which the defendant's conduct is repugnant to a societal sense of justice and decency.costs of future medical treatment. partiality. Ed. 129 L. Alliance Resources Corp. the Court held that large punitive damages awards did not violate the Eighth Amendment prohibition against the imposition of excessive fines (Browning-Ferris Industries of Vermont v. 1032. passion. which must consider the nature of the wrongdoer's behavior. v. symbolic sum. v. unless it can be shown that the jury or judge was influenced by prejudice. in Pacific Mutual Life Insurance Co. known as Additur. or the costs of restoring a damaged vehicle and of renting another vehicle while repairs are performed. 509 U. Interest can be awarded to compensate an injured party for money wrongfully withheld from her or him. 2711. 109 S. 257.
Punitive damages. Ed. The opposite process. 113 S. may be awarded to a plaintiff in addition to compensatory damages when a defendant's conduct is particularly willful. 113 L. 443. the Court held that unlimited jury discretion in awarding punitive damages is not "so inherently unfair" as to be unconstitutional under the DUE PROCESS CLAUSE of the Fourteenth Amendment to the U. 2d 336). which is a procedural process in which the jury verdict is reduced. or the date the lawsuit alleging the breach of the contract is initiated. also known as exemplary damages. Oberg.S. on the ground that it violated due process (Honda Motor Co. In 1989. Haslip. Ct.S. although in some jurisdictions it may equal the costs of bringing the lawsuit. 2909. 2d 1 (1991). 106 L. as when an individual defaults on an obligation to pay money owed under a contract. an injured plaintiff who proves that a defendant's actions caused the injury but fails to submit medical records to show the extent of the injury may be awarded only nominal damages. Supreme Court decisions. or oppressive. but cannot offer proof of a loss that can be compensated. The amount awarded is generally a small. the Court did strike down an amendment to the Oregon Constitution that prohibited Judicial Review of punitive damages awards. 499 U. 492 U. the extent of the plain-tiff's loss or injury. bias. Ed. Punitive damages are awarded not as compensation.S. 114 S. occurs when the court
. or corruption. 415. Later.
Ed. the court may order a new trial. An appellate court may determine that a damage award is excessive or inadequate.
Appellate Review of Damages
When reviewing a trial court's award of damages. The Clayton Act of 1914 (15 U. Bothremittitur and additur are used at the discretion of the trial judge. an appellate court generally examines all of the evidence from the trial to determine whether the evidence supports the award. On the other hand.C. Several federal courts of appeals are engaged in an ongoing struggle over what standard of review should be applied to punitive damages at the appellate court level. §§ 12 et seq. In Cooper Industries. whereby the judge directs the plaintiff either to accept a lower award or face a new trial. for example. such as the decision whether to admit or exclude testimony regarding Scientific Evidence..
In some situations. called a bench award. Furthermore. the court may adjust the award so that it corresponds with the evidence. to be paid by a party who breaches the contract to a nonbreaching party. 149 L. v. Courts review awards of punitive damages differently than other types of damage awards. a liquidated damages provision will be deemed unenforceable. or punishment for default.S. 2d 674 (2001). When reviewing awards for compensatory damages. 121 S. directs that treble damages be awarded for violations of federal ANTITRUST LAWS.deems the jury's award of damages to be inadequate and orders the defendant to pay a greater sum. if it appears that the parties have made no attempt to calculate the amount of actual damages that might be sustained in the event of a breach. and to order that a plaintiff receive the tripled amount. 532 U. the U. A court of appeals will also review a trial court's decision whether to admit or to exclude evidence that supports the damage award. Ct.
Liquidated Damages constitute compensation agreed upon by the parties entering into a contract.S. Liquidated damages may be used when it would be difficult to prove the actual harm or loss caused by a breach. A bench award by a judge is typically subject to closer scrutiny than an award by a jury. Supreme Court ruled that appellate courts must conduct de novo review rather than apply an
. One common method for altering an award is through the use of remittitur. a court will look to the intention of the parties. where provided by statute. 424. if the appellate court cannot determine the proper amount of the award based upon the evidence. In determining whether a particular contract provision constitutes liquidated damages or an unenforceable penalty.S. Leatherman Tool Group. 1678. Appellate courts typically review the trial court's decision with respect to admission or exclusion of evidence under the Abuse of Discretion standard. a statute will authorize a judge to multiply the amount of monetary damages awarded by a jury by three. Inc. If the court of appeals determines that the damages are excessive or inadequate.A. even if the terms liquidated damages and penalty are specifically used and defined in the contract. and are designed to remedy a blatantly inaccurate damages award by the jury without the necessity of a new trial or an appeal. In such situations. treble damages may be awarded. and can determine the proper amount with reasonable certainty.). Inc. The amount of liquidated damages must represent a reasonable estimate of the actual damages that a breach would cause. A contract term fixing unreasonably large or disproportionate liquidated damages may be void because it constitutes a penalty. an appellate court determines from the lower court's record whether the trial judge abused his or her discretion in allowing a jury's damage award to stand or in making his or her own damage award.
it makes a finding of fact that could not be disturbed by an appeals court unless it was clearly erroneous." For the Defense 44 (July). On occasion punitive damages can be greater than the actual
. "Measure of Damages in Property Loss Cases.S. loss of companionship. involved a suit for TRADEMARK infringement. or loss of money due on a contract. edition 2. oppressive. These include pain and suffering. 2003. Minick.000 in general damages and $4. for example). "How Juries Determine Damages Awards. basing its analysis on the abuse of discretion standard. ambulance charges. Dorothy K. which combines punishment and the setting of public example. shortening of life span.S. Moreover."ABA Journal 89 (June). Inc. loss of ability to perform various acts. He noted the similarities of punitive damages to criminal fines and cited various criminal cases that addressed the proportionality of sentences that relied on de novo review. property repair or replacement costs. fraudulent.
West's Encyclopedia of American Law. Supreme Court agreed to hear Cooper's appeal to resolve the division among the federal circuits over the appropriate standard of review for punitive damages. Reis. On appeal. Court of Appeals for the Ninth Circuit upheld the trial court. humiliation from scars. Supreme Court standards. The third major form of damage is exemplary (or punitive) damages. Robert Ward." Florida Bar Journal 76 (October). Cooper Industries. wanton. Stevens rejected the idea that when a jury awards punitive damages. Justice John Paul Stevens. future problems and crippling effect of an injury. John W. The U. Shaw.
Damages n. Special damages are those which actually were caused by the injury and include medical and hospital bills. "Pruning Punitives: High Court Stresses Guidelines for Deciding Damages. This standard is very deferential to the trial court's actions. mental anguish.S. loss of anticipated business and other harm.abuse of discretion standards. By comparison. writing for the majority. determined that the federal courts should apply de novo review. A jury awarded Leatherman $50. 2002. The Court. or grossly reckless way in causing the special and general damages to the plaintiff. 2002. violent. the U."North Carolina Law Review 81 (September).. de novo review empowers the appeals court to review all of the evidence on punitive damages without regard to the trial court's decision. concluded that the nature of punitive damages demanded that appeals courts conduct a fresh inquiry. Copyright 2008 The Gale Group. Kagehiro. John. There are many types of damages. This ruling means that federal appellate courts have great freedom to review and reduce punitive damages based on previous U. the amount of money which a plaintiff (the person suing) may be awarded in a
lawsuit. but are subjective both in nature and determination of value of damages. loss of wages. in an 8– 1 decision. "Punitive Damages in Medical Malpractice: an Economic Evaluation. loss of reputation (in a libel suit.5 million in punitive damages.
Gibeaut. allowing the appeals courts to overturn a decision only if the trial judge clearly abused his or her authority. The decision is one more example of the Court expressing its desire to control excessive punitive damage awards. All rights reserved. The second basic area of damages is general damages which are presumed to be a result of the other party's actions. Inc. where Cooper Industries was accused of using photographs of a knife manufactured by Leatherman Tool Group. 2003. and Robert D. Punitive damages may be awarded when the defendant acted in a malicious.
indemnification. continuing damages. division of damages. damages to reelty. civil damages. 1 Bay. pecuniary loss. restitution. 4 Dev. penalty. 247. 2 Dev.
. Damages are given either for breaches of contracts. or of a covenant to do or not to do a particular thing. addamnum clause. the rule seems to be to allow the consideration money. contingent damages. irreparable injury. out of pocket. liquidated damages. 108. presumptive dammges. Nominal damages are those given when the actual harm is minor and an award is warranted under the circumstances. property damage. reparation. pecuniary damages. recompense. But in Massachusetts. or relative rights. St. Eq. minimizing damages. legal costs. in consequence of the acts of another.trover
Burton's Legal Thesaurus. All Right reserved. claim for damages. for example. conjectural damages. consequential damages.liquidated damages)
Copyright © 1981-2005 by Gerald N. intervening dammges.restitution. as. expiation. property. indemnity. consequential damages. award. 5. 4 Mass. 523. for the non-performance of a written or verbal agreement. assessment of damages. remote damages. 4 Kent's Com.
See also: amercement. additur. in a sexual harassment case or fraudulent schemes. general damages. Copyright © 2007 by William C. 19. 46. ordinary damages. 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. damages actually sustained. duty to minimize damages. estimated damages. 3 Desaus. 265.penalty. See 7 Shepl. recompense. The indemnity given by law. treble damages. 30. with interest and costs. special damages. The most famous case was when Winston Churchill was awarded a shilling (about 25 cents) against author Louis Adamic who had written that the British Prime Minister had been drunk at a dinner at the White House.remuneration for injury suffered.amercement. for example. to be recovered from a wrong doer by the person who has sustained an injury. In cases of an eviction. 2. measure of damages. Inc. satisf action. or for tortious acts. reimbursement. 3 Mass. proximate damages. victus victori in expennis condemnari debet. R. compensation. expiation. 260. recovery. recovery. Used with permission of The McGraw-Hill Companies. direct damages. punishment. (See: judgment.unliquidated damages Foreign phrases: Ubi damna dantur.
damages noun amends. Hill. cost. future damages. damages to person.just compensation. and the cases there cited. damnum absque injuria. Liquidated damages are those pre-set by the parties in a contract to be awarded in case one party defaults as in breach of contract. legal liability. but not from secondary and remote consequences. nominal damages. the measure of damages is the value of the land at the time of eviction. prospective damages. repayment for loss. limitation of liability. either in his person. apportionment of damages. 4. Burton. Hill and Kathleen T. speculative dammges. compensatory damages. reasonable certainty of dammges. substantial damages.damages. excessive damages.
DAMAGES. 4E. punitive damages. irreparable damages. on the covenant of warranty. injury
. on covenant of seisin and warranty. 4 Penn. 6 Watts & Serg. loss. they are seldom awarded. special damages. reparation. general damages. permanent damages. 527. exemplary damages. the lossng party ought to be condemned to pay costs to the victor. 3. R. exemplary damages. lawful dammges. 3. practice. repayment for injury sustained. Damages for breach of contract may be given. mitigation of damages. incidental damages. 458. 3 Brev. reimbursement. restoration Associated concepts: actual loss. Although often asked for. R. fine. damages to property. costs. compensation.Where damages are given. indemnification. 462. damages accrued. aggravation of damages.
Vide 7 Vin. in consequence of building a dam on his own premises. Remote. 14. 213. 4 Mass. s. In cases where a statute gives a party double or treble damages. 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. 1. 155. But contrary decisions have taken place. 126. 107. 3 Dana. 5. 244. 5 Watts & S. 582. Com. Yelv. Damages. 416. the jury are to find single damages. Hard. 10 John. a. as in the case of actions upon contracts. When they are greater than is authorized by the rules and principles of law. the damages will not be considered excessive unless they are outrageous. 1 Gallis. Say. overflows his neighbor's land. 483. P. 39. Ab. are examples of this kind. In Sayer on Damages. 40. but at the price at which it may be sold at the time of settling the average. 1 Gillis. 5 Mass. practice. See Adjustment. 580. 525. DAMAGES. 1. Sec. 170. 11. Bouv. 19. Index. Toull. Ab. 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. a. as an assault and battery against the reputation. 9 John. note. not according to prime cost. 176. 606. 3. as. 286. 214. DAMAGES. R. 2 Greenl. EXCESSIVE. Kames on Eq. It has been ruled that the value at the port of destination is the proper criterion. for example. 168. and carried it away. 45. 14 John. when a man. 375. as. 190. & S. 443. 15 John. p. 7. Id. 7 Pick. and where there are no circumstances to aggravate the act. 621. Where the defendant had caused to be seized. R. Such damages as are unreasonably great. 12 S. In the first case the law presumes that calling a man a thief
. Inst. GENERAL. 464. 6 Call 85.t. when an adjustment is made. 77. Coop. h. for a debt due by B. R. as trespass. R. Damages for torts are either compensatory or vindictive. 4. 330. S. property of A for the debt of B. 82. 10 John. the jury may assess the statute damages and it would seem from some of the modern cases. 435. who. 2. and the court to enhance them. R. 247. Bac. 284. 4 S. c. or against the relative rights of the party injured. torts. the damages are settled by valuing the property. Marsh 365. as. in addition to the trespass. 2. 4 Mass. 10. leaving A's family in distress. R. as libels and slander. To call a man a thief. 2 A. t. the value of which may be ascertained by evidence. 2 Pick. 1 Lilly's Reg. it is said. against the property. 9. 1. K. 1 Rawle's Rep. and there appeared reason to believe it was B's.t. pl. 45. 2 Saund. 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. when force is used. 1 T. The damages are excessive in the following cases: 1. Vindictive damages are such as are given against a defendant. & R. 73. When they are greater than is demanded by the writ and declaration. 197. When the damages are excessive. has been guilty of acts of outrage and wrong which cannot well be measured by a compensation in money. Marsh. 24. n.. But in actions for torts to the person or reputation of the plaintiff. Cause. 219 4 Hayw. 5 Watts. 9 Pick. Sedgw. p. 3. Domat. 8. 8 John. or commit an assault and battery upon his person. Ab. R. 29. and with insult and outrage seized upon A's property. R. 524. General damages are such as the law implies to have accrued from the act of a tort-feasor. R. 2 M.. 7 Wend. 1 P. and see 4 Mass. In estimating the measure of damages sustained in consequence of the acts of a common carrier. Just.R. 115. Price. or for torts done to property. Dig. for example. 113. liv. & R. 2. Damages for tortious acts are given for acts against the person. DAMAGES. according to the statute Bro. for the purpose of compensating the plaintiff for his loss. R. h. 2 Penn. 186. R. 6 Halst. where the defendant went to A's house. 4. or for the consequential acts of the tort-feasor. 4 T. when such property was out of A's possession. 253. Ev. 586. and not warranted by law. Ham. B. 74. 3. as for criminal conversation with his wife. 3 Caines. N. on Dam. DOUBLE or TREBLE. 11.. 578. 12 Conn. s. 2. a new trial will be granted on that ground. 112. See. 2 Inst. 1 Mass. 1 Wils. 70. Inst. In cases of loss of which have been insured from maritime dangers. t. liv. that either the jury or the court may assess. 14. 6. 27. 31. n.
2. Inst. b.) It differ from a penalty. 2 B. usually laid at a small sum. 6 Bing. N. N. 2 L. Steph. Civil Code of Louis. 425. 2 Bro. Toull. 1152. Pl. 1 M. 1 H. and are. Eq. this difference: that. 61.-2. 3. 240. being the main object. contracts. 2 Ala. the not doing of which would be an injury to one of the parties. 1st. 297. 340. Inst. Ab. in the former case. 32. 150. because the latter is a forfeiture from which the defaulting party can be relieved. upon the whole. 76. 451. of different degrees of importance. or a penalty. but in the latter. 179. Sec. 78. 5 Metc. 1 Chit. & Al. 488. 1 H. 4 Pick. the sum so fixed upon is called liquidated damages. 232. 5. & P. 5 Cowen. Dig. 186. less than the penalty. 4 Burr. n. Where the agreement contains several matters. C. 7. n. and that the injured party is not required to specify what injury he has sustained. 3 Johns. 15 John. a different intent. The plaintiff cannot recover greater damages than he has laid in the conclusion of his declaration. 704. n.v. Where the
. C 84. 431. for obvious reason. 1318. Bl. 386. 11 Mass. the liquidated debt. 1 Saund. 5th. & P. where it has been considered as liquidated damages. 116. or the chattel demanded. 6 Humph. 227. if done. 5. 5. 40. 4 Dall. no damages are to be laid. 16. In personal and mixed actions.& C. and in the latter case. it is equally the practice to lay damages. 10 Rep. of such debt or chattel. Where it is doubtful whether it was intended as a penalty or not. 418. 3. the law implies that his person has been more or less deteriorated. Sir W. It is to be observed. 8 Misso. 3 Shepl. or to guard against the performance of acts which. the demand is specially for the land withheld. An agreement for liquidated damages can only be when there is an engagement for the performance of certain acts. 141. 200. a.-1. 390. 106. 809. Pleader. 76. 6 B. LIQUIDATED. P. 3. with showing that it is so. 72. 3d. 425. and must specify the amount of damages. or by a previous agreement between the parties. In real actions. which will be here enumerated by considering. and a certain debt or damages. 1 McMullan. Where the contract is not under seal. & Pul. When the parties to a contract stipulate for the payment of a certain sum. The sum agreed upon has been considered as liquidated damages. 1 Bro. Pl. & C. (but not in penal actions. (q. 1 Chit. 243. 6 Iredell. Pleader. 2d. and those that do not. that the sum fixed upon will be considered as liquidated damages. 350. 1 Pick. There is. art. 3 C. C 84. for the attainment of another object. where the parties in the agreement have expressly declared the sum intended as a forfeiture or a penalty. 141. Code Civil. and vide 2 Bos. 41. because. 7 John. Jones. damages are the main object of the suit. 2 Ala. 2 T. even the least. 4. R. Ham. 364. nor to prove it. 3584. 117. 1928. always laid high enough to cover the whole demand. DAMAGES. first. 4 Bouv. 224. 350-355." will not be regarded is at all decisive of the question. 273. and are. Vin. 467. 6 B. 216. 186. The civil law appears to agree with these principles. 2225. evidently. however. who may foresee the consequences of a breach of the engagement. n. & Malk. 7 Scott. It has been treated as penalty. LAYING. C. 6 Bing. that the injury is to the damage of the plaintiff. as a satisfaction fixed and agreed upon by them. 144. would also be injurious. is made payable on the face of the instrument.must be injurious to him. Com. 2 B. to which the sum specified is wholly collateral. 2. liv. b. 335. according to the intent of the parties. R. therefore. and the more use of the words "penalty.R. for the not doing of certain things particularly mentioned in the agreement. 1 Campb. if the instrument discloses. and stipulate accordingly. and no other intent can be collected from the instrument. Com. damages are claimed in respect of the detention only. 196. C. 2 Story. Where the agreement was made. and yet the sum named is payable for the breach of any." or "liquidated damages." &c "forfeiture. 1153. therefore. those cases where it has been considered as a penalty and. In such cases an estimate of the damages may be made by a jury. DAMAGES. P. 7 Wheat. in conclusion. 15 Mass. 14. 10 Rep. C. 3. pleading. and the damages are capable of being certainly known and estimated. in these. Bl. sed vide. b. 5 Bing. 426. Pl. secondly. Damages. 630. Cas. Rules have been adopted to ascertain whether such sum so agreed upon shall be considered a penalty or liquidated damages. Dig.) the declaration must allege. In personal actions there is a distinction between actions that sound in damages. but in either of these cases. and damages are in no degree the object of the suit. 1st. 4th. 397 to 400.
836. because the defendant cannot also be prepared to answer it. which of themselves are not a sufficient ground or foundation for the suit. N. 234. entering his house. 259. Ab. 72. cannot be set off against the claim which the tort feasor has against the party injured. 26 Wend. 2. 32. 2225. as the plaintiff will not otherwise be permitted to go into evidence of it at the trial. these are either superadded to general damages. it must be particularly stated in the declaration. Hamp. 200. 1 Bing. To constitute special damage the legal and natural consequence must arise from the tort. DAMAGES. SPECIAL. 7 Vin. 385. 429.. 436. were to state that by means of the damage done to his house. 2 T. 7 Cowen 307. SPECIAL. C. Special damages are such as are in fact sustained. as when the words become actionable only by reason of special damage ensuing. 13 Wend. 7 Conn. 16 Vin. 2 Story. 583. C. Rep. The unascertained amount which is due to a person by another for an injury to the person. arising from an act injurious in itself. 1 Alc. Fonbl. 102. 250. UNLIQUIDATED. 2 Shepl. 3. 2 Burr. and tossing his goods about. 15 John. from the uttering of slanderous words. 459. & Rawle 14. Just. 11 N. 1318. for example. H. 571. 2 W. Eq. Rep. and are not capable of being ascertained by any satisfactory and known rule. Prec. that damage is properly said to be the gist of the action. he was obliged to seek lodging elsewhere. torts. if any particular damage result to the plaintiff from the speaking of them. 2 Greenl. being unknown. from the tenor of the agreement. pleading. Pl. and are not implied by law. 468. P. 2 Bro. DAMAGES. But whether special damage be the gist of the action. 201. Willes. Rep. 389. & Nap. As distinguished from the gist of the action. as. 2 Atk. 194. 22 Wend. 4 Wend. it appears that the parties have ascertained the amount of damages by fair calculation and adjustment. Chit. & Rawle 122. 872. Sometimes the special damage is said to constitute the gist of the action itself. 234. 2. 11 N.
. Finch. & W. R. if a plaintiff in an action of trespass for breaking his close. property. or only collateral to it. 58. 7 John. Juris. in Ch. or from the nature of the case. 1 Camp. 223. Ab. 3 M. 10 Serg. See Gist. 5 Serg. and not be a mere wrongful act of a third person. or a remote consequence. 2d. 2 Ala. but injurious only in its consequences. 425. generally. 240. Contr.damages are uncertain. 545. Vide. 10 Mass. 117. 2 Dall. 40. Where. 630. in an action wherein the plaintiff declares for slanderous words. 606. 7 Metc. 8 Mass. Pr. 302. 58. & P. or relative rights of the party injured. 1190. 447. 1 Chit. P. 1 Yeates. Ev. S. Sec. 6 Blackf. 17 Wend. 151. as when some particular loss arises. Ham. 247. 1 Chit. Bl. actionable in themselves. or are such as arise from an act indifferent and not actionable in itself. 23. 6. 206. 237. 3 C. 291. 507. note. signify that special damage which is stated to result from the gist. These damages. DAMAGES. Coop. 10 Ves. Sec.