Art. 5. Prospective Damages. ARTICLE V. PROSPECTIVE DAMAGES. In Witherbee v. Meyer, 155 N. Y. 446; s. c., 5 N. Y. Annot. Cas. 167, opinion Parker, Ch. J., it is said (p. 168): "The general rule is that the party injured is entitled to recover all of his damages, including gains prevented as well as losses sustained, but this rule is subject always to two conditions: First, that the damages shall be such as must have been fairly within the contemplation of the parties to the contract at the time it was made; and, second, they must be certain, not only in their nature, but as respects the cause from which they proceed, for the law wisely adopts that mode of estimating damages which is most definite and certain." Citing Freeman v. Clute, 3 Barb. 424; Griffin v. Colver, 16 N. Y. 489; Rogers v. Bemus, 69 Pa. St. 432; Pennypacker v. Jones, 106 Pa. St. 237; Cassidy v. LeFevre, 45 N. Y. 562; Manhattan Stamping Works v. Koehler, 45 Hun, 150; Rochester Lantern Co. v. Stiles & Parker P. Co., 135 N. Y. 209. In a very full note to this case in 5 N. Y. Annot. Cas. at p. 170, it is said: "How far prospective damages should be allowed as an element of damages for the breach of a contract or for a tort, has always been a mooted question, as shown by the frequent discussions of the subject by the courts. The courts have frankly admitted the difficulty of establishing fixed rules in this respect." In this note a number of cases, both as to contracts and torts, are referred to. Among those laying down the rule as to right to recover for profits prevented, where the action is in tort, are: Ebenreiter v. Dahlman, 19 Misc. Rep. 9, 42 N. Y. Supp. 867; Langan v. Potter, 8 Misc. Rep. 541, 28 N. Y. Supp. 752; Wolff v. Hvass, 11 Misc. Rep. 561, 32 N. Y. Supp. 798; Schalscha v. Third Ave. R. R. Co., 19 Misc. Rep. 141, 43 N. Y. Supp. 251; Feinstein v. Jacobs, 15 Misc. Rep. 474, 37 N. Y. Supp. 345; Goldschmid v. City of New York, 14 App. Div. 135, 43 N. Y. Supp. 447; Carpenter v. Pennsylvania R. R. Co., 13 App. Div. 328, 43 N. Y. Supp. 203; Snow v. Pulitzer, 142 N. Y. 263; Jutte v. Hughes, 67 N. Y. 267; Schile v. Brokhahus, 80 N. Y. 614; Whitehall Transportation Co. v. N. J. Steamboat Co., 51 N. Y. 369; Evans v. Keystone Gas Co., 148 N. Y. 112, and Leach v. N. Y., N. H. & H. R. R. Co., 89 Hun, 377, Art. 5. Prospective Damages. 35 N. Y. Supp. 305, where it was held, per Follett, J. (p. 380): When it is uncertain whether damages have been caused by the violation of a contract, none can be recovered, a jury not being permitted to speculate whether damages may not have been occasioned; but when it appears that damages have been caused by the breach of a contract, the amount of which is uncertain and incapable of ascertainment by computation or by direct evidence, the injured party is entitled to recover such as he can show to be the direct results of the breach of the contract. In many cases the damages can be ascertained by computation, or are in their nature capable of being definitely fixed, and in such cases the parties are confined to direct evidence and are not permitted to prove collateral facts from which inferences as to the amount of damages sustained may be drawn. In cases where the damages cannot be fixed by computation or by direct evidence, the kind and character of evidence admissible for the purpose of proving the damages depend upon the circumstances of each case. Evidence which would be quite competent in one case would be utterly incompetent in another, and the inquiry always is whether, under the circumstances of the case in hand, evidence has been given which would authorize a jury to award more damages than are shown to flow directly from the breach of the contract." In Snow v. Pulitzer, 142 N. Y. 263, it was said, opinion per Earl, J.: "But the principal item of recovery was on account of the prospective profits from the plaintiff's business during the remainder of the term of his lease, and that they were proper to be considered in estimating his damages in a case like this, where he was evicted and his business broken up by the trespass and wrong of the defendant, was decided in Schile v. Brokhahus, 80 N. Y. 614." The rule referred to is recognized in Hangen v. Hachemeister, 114 N. Y. 566. In an action at law for a trespass committed in piling dirt upon the plaintiff's land, his recovery is limited to damages accruing prior to the commencement of the action, and he cannot recover prospective damages, based upon the theory that the trespass will be permanent; it is, therefore, error for the court to charge that he is entitled to recover the difference between the value of the land with, and its value without, the dirt upon it. Mott v. Lewis, 52 App. Div. 558, 65 N. Y. Supp. 31, citing Art. 5. Prospective Damages. numerous authorities. This rule was applied as to damages for loss of prospective crops. Gillett v. Trustees of Kinderhook, 77 Hun, 604; Kinsey v. City of New York, 75 App. Div. 262; Rusert v. City of New York, 69 App. Div. 302. In Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98, the court considered the right to recover for prospective damages for an unlawful structure erected upon plaintiff's premises. It was held that, "Where a railroad is unlawfully constructed in a street, in an action by an adjacent owner to recover damages, he is entitled to recover simply the damages sustained up to the commencement of the action, and it seems for any damages thereafter sustained, other actions may be brought successively until the nuisance shall be abated. The structure being a nuisance, the railroad company is under legal obligation to remove it, and it is not to be presumed that it will continue it permanently. Damages, therefore, may not be awarded upon that assumption, nor will the judgment operate as a purchase of the right to have the structure remain. "Accordingly held, that proof and an allowance as damage for the permanent diminution in the market value of plaintiff's lots was improper, conceding that the embankment was unlawfully constructed. "It seems that where a railroad is unlawfully constructed in a street, the adjacent owner has these remedies: he may bring successive suits to recover his damages; he may bring an action in equity to restrain the operation of the road and compel the abatement of the nuisance; or when the highway has been exclusively appropriated, he may maintain an action of ejectment. "The authorities upon the subject of the damages recoverable in actions of trespass collated and discussed." It is said of this case in Sutherland v. City of Brooklyn, 156 N. Y. 605, that the rule of damages is so exhaustively examined in the opinion of Judge Earl that it is unnecessary to review the authorities in detail. "Where one has trespassed upon the lands of another, and the encroachment is practically a permanent one, the rule of damages is the difference between the value of the property before the trespass was committed and afterward (Argotsinger v. Vines, 82 N. Y. 308), or, as it has been otherwise expressed, the measure of damages is the depreciation in the value of the property.' Art. 6. Speculative Damages. (Sutherland on Damages, § 1017.)" Goldschmid v. City of New York, 14 App. Div. 135 (141), 43 N. Y. Supp. 447. ARTICLE VI. SPECULATIVE DAMAGES. Damages that are uncertain, contingent, or speculative are not recoverable. Damages may be speculative or uncertain in several respects. First, it may be uncertain whether the party claiming damages has in a legal sense been damaged at all. Second, though damages from some cause be shown, it may be uncertain whether in the particular case they resulted from the defendant's acts. Or third, the damages may be wholly uncertain in measure or extent. 8 Am. & Eng. Encyc. of Law (2d ed.), 608. It is frequently difficult in the administration of the law to apply the proper rule of damages, and the decisions upon the subject are not harmonious. The cardinal rule undoubtedly is that the one party shall recover all the damage which has been occasioned by the breach of the contract by the other party. But this rule is modified in its application by two others: The damages must flow directly and naturally from the breach of the contract, and they must be certain, both in their nature and in respect of the cause from which they proceeded. Under this latter rule speculative, contingent, and remote damages which cannot be directly traced to the breach complained of are excluded. Under the former rule such damages only are allowed as the parties may fairly be supposed when they made the contract to have contemplated as naturally following its violation. (Hadley v. Baxendale, 9 Exch. 341; Griffin v. Colver, 16 N. Y. 489; Leonard v. N. Y. etc., Tel. Co., 41 N. Y. 544, 566; Cassidy v. LeFevre, 45 N. Y. 562.) Rochester Lantern Co. v. The Stiles & Parker Press Co., 135 N. Y. 209 (217). Where a wrong had been done from which pecuniary injury has resulted, or where injury is the natural or probable result of a wrong, the injured party is not remediless, although the extent of the injury is not capable of precise proof. The jury in such a case may fix the damages within reasonable limits, as best they Actions for defamation or involving recovery for pain or may. suffering are examples. But where damages claimed are neither the probable result of the wrong nor capable of proof, they cannot be awarded by the jury. It is not in the interest of justice Art. 7. Nominal Damages. to extend the field of speculation in jury trials beyond its present limits, and to sustain the ruling in this case would go beyond what has been hitherto sanctioned by the courts. Butler v. Manhattan Ry. Co., 143 N. Y. 417 (422). The authorities on this subject are collated and considered in Witherbee v. Meyer, 155 N. Y. 446, opinion Parker, Ch. J. ARTICLE VII. NOMINAL DAMAGES. Damages may be classed as nominal, compensatory, and exemplary; the latter also termed punitive or vindictive damages, or popularly termed "smart money." Nominal damages are damages insignificant in amount a sum of money that can be spoken of, but has no existence in point of quantity such as are awarded only in cases where the law presumes the damage. Whenever the law presumes damage it presumes the least possible amount, that is, nominal damages. Hale on Damages, 24. In this class of cases a wrong can be shown without proof of damage. There is a legal presumption that a right has been evaded and that damages follow; but, in the absence of proof as to the amount, nominal damages are given. Sutherland on Damages, 18; Webb v. Portland Mfg. Co., 3 Sumn. 189. Damages may be nominal, ordinary, or exemplary. Nominal damages are a sum of so little value as compared with the cost and trouble of suing that it may be said to have "no existence in point of quantity," such as a shilling or a penny, which sum is awarded with the purpose of not giving any real compensation. Such a verdict means one of two things. According to the nature of the case it may be honorable or contumelious to the plaintiff. Either the purpose of the action is merely to establish a right, no substantial harm or loss having been suffered, or else the jury, while unable to deny that some legal wrong has been done to the plaintiff, have formed a very low opinion of the general merits of his case. This, again, may be on the ground that the harm he suffered was not worth suing for, or that his own conduct had. been such that whatever he did suffer at the defendant's hands was morally deserved. The former state of things, where the verdict really operates as a simple declaration of rights between the parties, is most commonly exemplified in actions of trespass brought to settle disputed claims to rights of way, rights of com |