PART I. RELIEF. TITLE I. RELIEF IN GENERAL. II. COMPENSATORY RELIEF. III. SPECIFIC AND PREVENTIVE RELIEF. TITLE I. RELIEF IN GENERAL.. SECTION 3274. Species of relief. 3275. Relief in case of forfeiture. of relief. 3274. As a general rule, compensation is the relief Species or remedy provided by the law of this State for the violation of private rights, and the means of securing their observance; and specific and preventive relief may be given in no other cases than those specified in this Part of the CIVIL CODE. NOTE. When the thing to be done is the payment of money, the remedy is adequate and perfect. But when the thing to be done is anything else than the payment of money, the common law can give only a remedy which may be entirely inadequate; for it can only give a money remedy.-See Parsons on Contracts, Vol. 1, p. 490. Action at law is the remedy for procuring relief or compensation for all damages which are capable of being estimated in money value. Equity actions enforce specific performances, or afford other relief, in all cases where the damages or the acts com Relief in case of plained of are not capable of an estimate in money value. 3 Pars. on Contracts, pp. 370-373. 3275. Whenever, by the terms of an obligation, a forfeiture. party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of his failure to comply with its provisions, he may be relieved therefrom, upon making full compensation to the other party, except in case of a grossly negligent, willful, or fraudulent breach of duty. NOTE.-Though this doctrine, especially as applied to contracts, is one in its origin of purely equitable cognizance, it is now to be applied in all actions, and to be considered in estimating damages, as well as in granting specific relief.-See Spaulding vs. Hallenbeck, 39 Barb., p. 78; Clute vs. Robinson, 2 Johns., pp. 595, 614; Davis vs. West, 12 Ves., p. 475; Sanders vs. Pope, id., p. 282; Northcote vs. Duke, Ambler, p. 513; Eden, p. 314; Woodman vs. Blake, 2 Vern., p. 222; Hayward vs. Angel, 1 id., p. 222; Popham vs. Bamfield, id., p. 83; Wallis vs. Crimes, 1 Ch. Ca., p. 90; see Skinner vs. White, 17 Johns., p. 357; De Forest vs. Bates, 1 Edw., p. 394. The common law does not aim at preventing a breach of duty or compelling specific performance, this equity does. The principle which measures damages, at common law, is that of giving compensation for the injury done. The amount of damages awarded should suffice to put the injured party in as good position as he was anterior to 66 the injury.-Rudder vs. Price, 1 H. Bl., p. 547; Robinson vs. Bland, 2 Bun., pp. 1077-1086; Co. Litt., p. 257a. A "grossly negligent, willful, or fraudulent breach of duty" will entitle the injured party to vin dictive or exemplary damages. These occur usually in actions ex delicto." After a verdict is found for adequate compensation for the injury the jury add thereto their damages by way of punishment.-5 Campbell's Lives of Lord Chancellors, p. 207. Lord Camden remarked that "damages are designed not only as a satisfaction to the injured party, but as a punishment to the guilty." This is sustained by Sedgwick on Measure of Damages. In the case of Mendelsohn vs. The Anaheim Lighter Co., 40 Cal., p. 657, a common carrier was held liable for punative damages for gross, willful, and tortuous breach of duty, enjoined on him by law as such. TITLE II. COMPENSATORY RELIEF. CHAPTER I. Damages in General. CHAPTER I. DAMAGES IN GENERAL. ARTICLE I. GENERAL PRINCIPLES. II. INTEREST AS DAMAGES. III. EXEMPLARY DAMAGES. ARTICLE I. GENERAL PRINCIPLES. SECTION 3281. Person suffering detriment may recover damages. 3282. Detriment, what. 3283. Injuries resulting or probable after suit brought. Person suffering detriment may recover damages. Detriment, what. Injuries resulting 3281. Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages. 3282. NOTE. See the notes to Secs. 3274 and 3275, ante; also, Sec. 1714, ante, and note. PERSONAL INJURIES.-Baxter vs. Roberts, July Term, 1872, Cal. Rep. (No. 2919). Defendant as employer liable to plaintiff, employé, for concealing danger known to defendant, whereby plaintiff was injured. Kelly vs. Frazer, July Term, 1872 (No. 3063); Karr vs. Parks, July Term, 1872 (No. 3039). INJURIES TO PROPERTY.-Destruction by carelessness with fire.-Merritt vs. Campbell, July Term, 1872 (No. 3124). Detriment is a loss or harm suffered in person or property. 3283. NOTE. This word is used in order to avoid the repetition of the words "loss or harm" in the numerous places in which they would otherwise occur. Injury signifies the wrongful act, and not its results, while on the other hand there may be loss without injury. The phrase "damnum absque injuria," is familiar to lawyers. The word "harm " alone would be inadequate to express all the meaning of "loss."-See note to preceding section-injuries to person and injuries to property. Damages may be awarded, in a judicial proor probable ceeding, for detriment resulting after the commencement thereof, or certain to result in the future. after suit brought. NOTE.-Drew vs. Sixth Avenue R. R., 26 N. Y., p. 49. Where there is proof of damages the amount is simply within the province of the jury. The Supreme Court will not examine the proof or declare that the evidence was insufficient to justify the verdict.-Bartlett vs. Hogden, 3 Cal., p. 58; Drake vs. Palmer, 4 Cal., p. 11. Proof of damages may extend up to the time of verdict of all facts which naturally flow from the injury complained of.-Hicks vs. Herring, 17 Cal., p. 566. Loss of time, value of services, and wages of employés are not remote but proximate and immediate damages. Kenyon vs. Goodall, 3 Cal., p. 257. Counsel fees for dissolving injunction not recoverable unless paid.-Prader vs. Grimm, 28 Cal., p. 1; Willson vs. ARTICLE II. INTEREST AS DAMAGES. SECTION 3287. Person entitled to recover damages may recover in terest thereon. 3288. In actions other than contract. 3289. Limit of rate by contract. 3290. Acceptance of principal waives claim to interest. entitled to damages may recover interest 3287. Every person who is entitled to recover Person damages certain, or capable of being made certain by recover calculation, and the right to recover which is vested re in him upon a particular day, is entitled also to recover thereon. interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor, from paying the debt. NOTE.-May recover interest in addition from the day the right to recover vests. This seems to be the rule in actions for wrongful injuries (Andrews vs. Durant, 18 N. Y., p. 496; Jackson vs. Wood, 24 Wend., p. 443), as it clearly is in actions upon contract.-Dana vs. Fiedler, 12 N. Y., p. 40; Van Rensselaer vs. Jewett, 2 N. Y., p. 136; Livingston vs. Miller, 11 N. Y., p. 80; Purdy vs. Phillips, 11 N. Y., p. 406; 1 Duer, p. 369; see Brinckerhoff vs. Phelps, 24 Barb., p. 100; Sherman vs. Wells, 28 id., p. 403. The obligation to pay interest rests upon the default of the debtor, and not upon his use of the money.-Rensselaer Glass Factory vs. Reid, 5 Cow., p. 587; People vs. County of N. Y., id., p. 331. Prevented from paying. If a debtor is prevented from paying by injunction he is not liable for interest.-Stevens vs. Barringer, 13 Wend., p. 639; Fitzgerald vs. Caldwell, 2 Dallas, p. 215; Le Braithwait vs. Halsey, 4 Halst., p. 3. If one party is prevented from performance by the fault of the other, the party in fault cannot take advantage of his own wrong.— 2 Parsons Contracts, p. 523, and cases there cited in Note h. If one party fails in full performance with49-vol. ii. |