DAMAGES. 201 



stances as that an actual contract arises on tlie part of the 

 defendant to bear the exceptional loss" (»). 



In the ordinary case of Trover for a Horse, the plaintiff Damages 

 recovers the value of the Horse, and not what the Horse !?"" wrongful 

 might have earned besides io). Special damages may be 

 recovered in trover if laid. Therefore, where in trover for 

 a Horse it was laid as special damage, that the plaintiff 

 was obliged to hire other Horses, it seems that the amount 

 of damages should be the value of the plaintiff's Horse 

 when taken, and the sum be paid for hire, deducting what 

 would have been the expense of keeping his own Horse for 

 the time(jj). 



Where the property in goods has passed under the Con- 

 tract, but the price has not been paid, and the vendor has 

 wrongfully converted and disposed of the goods so as to 

 preclude himself from delivering them, and recovering the 

 price, the vendee can only recover the difference between 

 the value of the goods and the contract price, and cannot 

 recover the full value by suing for the Conversion of the 

 goods instead of for the Breach of Contract {q) . 



Whenever a party is liable for a Breach of a Contract, Damages in 

 either express or implied, it seems that the plaintiff is ^°''^- 

 entitled at all events to nominal Damages ; although the 

 action be framed in Tori for such Breach of Contract, and 

 no actual Damage be proved (r) . But in the case of 

 actions framed in Tort for Breach of Contract (s), the 

 Damages must be such as are capable of being appreciated 

 or estimated, whereas in such as are not founded on Con- 

 tract the Jury may consider the injury to the feelings, 

 and many other matters, which have no place in actions 

 of Contract (f) . 



In an action for the recovery of a fixed pecuniary de- In actions for 

 mand, which the defendant has not shown groimds for ^J^™ ^^^' 

 reducing, by proving a partial failure of Consideration, it 

 is obviously in general the duty of the Jury to give the 

 plaintiff neither more nor less than the sum specified {it) . 



(h) Per Blackburn, J., in Norne C. P. 130. 

 Y. Midhoid Jiailuai/ Co., Jj.H., 8G. (r) Molin v. Steward, 23 L. J., 



P. 131 ; 42 L. J.fC. P. 54. C. P. 148; Chit. Contr. 10th ed. 



(o) Per Jervis, C. J., Read v. 813. 

 Fairbanks, 22 L. J.i C. P. 20C. (s) The action for breach of con- 



[p) Davis V. Osivell, 7 C. & P. tract of marriage is the only ex- 



804 ; see further, Trance v. Gaudet, ception. 



L. R., 6 Q. B. 199 ; 40 L. J., Q. (/) Per Pollock, C. B., Hamlin v. 



B. 121. Great Northern Ilaihcay Co., 1 H. & 



{q) Chincrij V. Viall, 29 L. J., N. 410. 

 Ex. 180; Johnson \.8tcar,2,'ilj. J., {>() Chit. Contr. 10th ed. 813. 



