In actions other than contract. Limit of rate by contract. out fault of the other so as to sue upon it, still the other, if he has derived benefit from the part performed, he must pay what it is reasonably worth.-Id., Note i. 3288. In an action for the breach of an obligation not arising from contract, and in every case of oppres sion, fraud, or malice, interest may be given, in the discretion of the jury. NOTE.-Action other than on contract.-Sedgw. Dam., pp. 385, 386. And for oppression, fraud, or malice, interest discretionary with jury.-Wilson vs. Conine, 2 Johns., p. 280; Bissel vs. Hopkins, 4 Cow., p. 53; Hyde vs. Stone, 7 Wend., p. 354; Baker vs. Weller, 8 Wend., p. 501; Dillerback vs. Jerome, 7 Cow., p. 294; Beals vs. Guernsey, 8 Johns, p. 446; Cunningham vs. Dorsey, 6 Cal., p. 20. Vindictive damages may be given in a civil action for personal injury, though the act be punishable by criminal prosecution.-2 Cal., p. 54, Wilson vs. Middleton. This rule applies as well to officers.-Nightingale vs. Scannell, 18 Cal., p. 315. For trespass not malicious, exemplary or vindictive damages cannot be recovered.-Selden vs. Cashman, 20 Cal., p. 56. Otherwise where these ingredients exist.-Dorsey vs. Manlove, 14 Cal., p. 553. If aggravating circumstances are shown to increase damages, all circumstances and acts explanatory of motives and intention may be shown in rebuttal.-Id. It is no defense that the plaintiff by doing an act amounting to a trespass to defendant's property could have avoided the injury.-Wolf vs. St. Louis Ind. W. Co., 15 Cal., p. 319. The principal is responsible for the wanton and malicious acts of the agent, if within the scope of his authority, but not otherwise.-Kline vs. C. P. R. R., 37 Cal., p. 408; Needham vs. S. F. & S. J. R. R. Co., id., p. 409; Turner vs. N. B. & M. R. R. Co., 34 Cal., p. 594; Mendelsohn vs. Anaheim Lighter Co., 40 Cal., p. 657. 3289. Any legal rate of interest stipulated by a contract remains chargeable after a breach thereof, as before, until the contract is superseded by a verdict or other new obligation. NOTE. This rule has been established in California, by statute.-Kohler vs. Smith, 2 Cal., p. 597. The common law rule is otherwise. Compare Lawrence vs. Leake & Watts Orphan House, 2 Den., p. 577. 3290. Accepting payment of the whole principal, Acceptance as such, waives all claim to interest. NOTE.-Jacot vs. Emmett, 11 Paige, p. 142; Gillespie vs. Mayor, etc., of New York, 3 Edw., p. 512; Tillotson vs. Preston, 3 Johns., p. 229; Johnston vs. Brannan, 5 id., p. 268; Williams vs. Houghtaling, 3 Cow., p. 86; Consequa vs. Fanning, 3 Johns. Ch., p. 587. But receiving a general payment, though precisely enough (People vs. County of New York, 5 Cow., p. 331), or more than enough (Stevens vs. Barringer, 13 Wend., p. 639) to pay the principal, does not defeat the right to recover the interest. And if payment of interest is stipulated in the contract, it may be recovered, although the principal has been paid.Fake vs. Eddy, 15 Wend., p. 76. of principal waives claim to interest. ARTICLE III. EXEMPLARY DAMAGES. SECTION 3294. Exemplary damages, in what cases allowed. damages, in allowed. 3294. In any action for the breach of an obliga- Exemplary tion not arising from contract, where the defendant what casos has been guilty of oppression, fraud, or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant. NOTE. This is the rule as now settled in New York by the Court of Appeals.-Hunt vs. Bennett, 19 N. Y., p. 173; and see Johnson vs. Jenkins, 24 N. Y., p. 252; Fry vs. Bennett, 1 Abb. Pr., p. 289; 4 Duer, p. 247; Brown vs. Chadsey, 39 Barb., pp. 253, 259; Sharon vs. Mosher, 17 Barb., p. 518. The propriety of allowing damages by way of punishment has been, however, very earnestly and ably questioned. See the discussion of this subject in Sedgwick on Dam., 3d ed., Chap. 18, and especially p. 477, note 2; and Appendix. The same rule prevails in this State.Wilson vs. Middleton, 2 Cal., p. 54; Nightingale vs. Scannell, 18 Cal., p. 315; Dorsey vs. Manlove, 14 Cal., p. 553. See note to Sec. 3312, post, and notes to Secs. 3274 and 3275, ante. When exemplary and vindictive damages may be allowed.-See 3 Parsons on Contracts, pp. 169 to 177, and notes, and p. 208; Flint vs. Lyon, 4 Cal., p. 21; Pounsett vs. Fuller, 17 C. B., p. 660; 2 Bì. Com., p. 451; 3 id., p. 166; see, also, note to Sec. 3288, ante. The personal right of protection from bodily harm.-See Sec. 43, ante. In Baxter vs. Roberts, Cal. Rep., July Term, 1872, it is held that an employé injured in consequence of a concealment of a fact by his employer may recover damages therefor. This is an important case. CHAPTER II. MEASURE OF DAMAGES. ARTICLE I. DAMAGES FOR BREACH OF CONTRACT. III. PENAL DAMAGES. IV. GENERAL PROVISIONS. ARTICLE I. DAMAGES FOR BREACH OF CONTRACT. SECTION 3300. Measure of damages for breach of contract. 3301. Damages must be certain. 3302. Breach of contract to pay liquidated sum. 3303. Dishonor of foreign bills of exchange. 3304. Detriment caused by preach of covenant of seizin, etc.-what is. 3305. Detriment caused by breach of covenant against in cumbrances, is what. 3306. Breach of agreement to convey real property. 3307. Breach of agreement to buy real property. 3308. Breach of agreement to sell personal property, not paid for. 3309. Breach of agreement to sell personal property paid for. 3310. Breach of agreement to pay for personal property sold. 3317. Carrier's delay. 3318. Breach of warranty of authority. 3319. Breach of promise of marriage. damages for bronch of contract. 3300. For the breach of an obligation arising Measure of from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, which the party in fault had notice, at the time of entering into the contract, or at any time before the breach, and while it was in his power to perform the contract upon his part, would be likely to result from such breach, or which, in the ordinary course of things, would be likely to result there from. NOTE.-Compensation for all proximate damages. THE MEASURE.-Griffin vs. Colver, 16 N. Y., p. 489; Hadley vs. Baxendale, 9 Exch., p. 341; Gee vs. Lanc. and Yorksh. Railw. Co., 6 H. & N., p. 211; Wilson vs. L. and Y. Railw. Co., 9 C. B. (N. S.), p. 632; Landsberger vs. Magnetic Telegraph Co., 32 Barb., p. 530; Smeed vs. Foord, 1 El. & El., p. 602; Boyd vs. Fitt, 14 Irish Law, p. 43. NOTICE at the time of or before breach. This provision adopts the suggestion of Baron Bramwell, in Gee vs. L. and Y. Railw. Co., 6 H. & N., p. 211, though it is conceded that it is not undoubted law. See, also, as to extraordinary damages, Dunlop vs. Higgins, 1 H. of L. Cas., p. 381. THE LAST CLAUSE is plainly a just qualification of the preceding one. Damages resulting from the general effect of an attachment on the credit of the defendant, are too remote to be recovered.-Heath vs. Lent, 1 Cal., p. 410. Ah Thaie vs. Quan Wan, 3 Cal., p. 216, overrules this case only as to counsel fees being added as damages. On the point in the text this case is still the rule. Joint trespassers under legal process are jointly liable. The owner of property wrongfully seized by Sheriff, under attachments in several actions, may recover on all indemnity bonds given, although but one of the plaintiffs gave special direction to seize the property.-Lewis vs. Johns, 34 Cal., p. 629. Counsel fees actually paid to procure dissolution of injunction constitute and are properly allowed as part of the damages. Ah Thaie vs. Quan Wan, 3 Cal., p. 216; Prader vs. Grim, 13 Cal., p. 588, and 18 Cal., p. 11. Parsons on Contracts, 3d vol., p. 155, says: "The principle which measures damages at common law is that of giving compensation for the injury sustained-a compensation Damages must be certain. which shall put the injured party in the same position in which he would have stood had he not been injured.” As to the circumstances which increase or lessen damages, see 3 Parsons on Contracts, p. 164, et seq., and notes. The Courts now seek to apply the principle of COMPENSATION to the MEASUREMENT of damages, even more than formerly, hence the plaintiff recovers generally more or less than the amount specified in his complaint, according to his proof. A contract, to be obligatory on either party, must be mutual and reciprocal.-Doe vs. Culverwell, 35 Cal., p. 291. One party refusing to perform, the one not in fault may treat the contract as wholly broken, and sue without waiting for the time of performance to elapse. Hale vs. Trout, 35 Cal., pp. 229, 241, and on page 242 the learned Justice Sawyer cites some thirteen cases in support of this opinion. A party cannot have a rescission of a contract without an offer to return the money received on account (Morrison vs. Lods, 39 Cal., p. 381); nor where there is fraud.-Creuss vs. Fessler, id., p. 336. Duty of Court to construe letters and determine whether they constitute a contract or not.-Ellis vs. Crawford, 39 Cal., p. 523. 3301. No damages can be recovered for a breach. of contract which are not clearly ascertainable in both their nature and origin. NOTE.-Griffin vs. Colver, 16 N. Y., pp. 489, 495. Where damages are capable of precise admeasurement equity will not take jurisdiction except under peculiar equitable circumstances.-White vs. Fratt, 13 Cal., p. 524. Counsel fees in certain cases referred to in note to Sec. 3333, recoverable on injunction bond.-See Prader vs. Grim et al., 13 Cal., p. 585; also 28 Cal. (same parties), p. 11. But where for want of certainty in the price agreed upon, and the vendee, after offer to return the articles purchased, which is refused, sells them, he is the trustee of the vendor.-Greene vs. Bateman, 2 Woodf, & M., p. 359. In admiralty actions counsel fees are often allowed, as are the full expenses of litigation. The Amiable Nancy, 3 Wheat., p. 546; Venus, 5 Wheat., p. 127; Appollon, 9 id., p. 362; Center vs. Am. and Oc. Ins. Co., 3 Pet., p. 307. Special damages to be recovered must be alleged-a well settled rule in our Courts.-3 Parsons Contracts, pp. 176-7; 1 Chitty's Pl., p. 332. Special damages are the natural, though not the necessary, result of the injury.-Vanderslice |