follows: "Where one violates his contract he is liable only for such damages as are caused by the breach, or such as, being incidental to the act of omission or commission as a natural consequence thereof, may reasonably be presumed to have been in the contemplation of the parties at the time the contract was made." But under these rules a party will not always be permitted to escape liability for breach of a contract upon the ground that the damages arising from the breach were not contemplated at the time of the execution of the contract. The law presumes that the parties contemplated the usual and natural consequences of the breach when the contract was made. The rule as to this presumption was stated by the New York court as follows: "It is presumed that the parties contemplate the usual and natural consequences of a breach when the contract is made; and if the contract is made with reference to special circumstances, fixing or affecting the amount of damages, such special circumstances are regarded within the contemplation of the parties, and damages may be assessed accordingly." "62 But where the contract has been entered into in good faith without any notice of circumstances which would render special dam

Chicago &c. R. Co. v. Hale, 83 Ill. 360; Lowe v. Turpie, 147 Ind. 652, 44 N. E. 25; Bierhaus v. Western U. T. Co., 8 Ind. App. 246, 34 N. E. 581; Tebbs v. Cleveland &c. R. Co., 20 Ind. App. 192, 50 N. E. 486; Western U. Tel. Co. v. Henley, 23 Ind. App. 14, 54 N. E. 775; Baltimore &c. R. Co. v. Pumphrey, 59 Md. 390; Mather v. American Ex. Co., 138 Mass. 55; Paine v. Sherwood, 19 Minn. 315; Day v. Gravel, 72 Minn. 159, 75 N. W. 1; Vicksburg &c. R. Co. v. Ragsdale, 46 Miss. 458; Silver v. Kent, 60 Miss. 124; Fisher v. Goebel, 40 Mo. 475; Deming y. Grand Trunk R. Co., 48 N. H. 455; Griffin v. Colver, 16 N. Y. 489; Baldwin v. United States T. Co., 45 N. Y. 744; Briggs v. New York &c. R. Co., 28 Barb. (N. Y.) 515; Leach v. New York &c. R. Co., 89 Hun (N. Y.) 377; Lindley v. Richmond &c. R. Co., 88 N. Car. 547; Rocky Mount Mills v. Wilmington &c. R. Co., 119 N. Car. 693, 25 S. E. 854; Fessler v.

Love, 48 Pa. St. 407; Fleming v. Beck, 48 Pa. St. 309; Railroad v. Cabinet Co., 104 Tenn. 568, 58 S. W. 308; Pacific Ex. Co. v. Darnell, 62 Tex. 639; Missouri &c. R. Co. v. Belcher, 89 Tex. 428, 35 S. W. 6; Thomas &c. Co. v. Wabash &c. R. Co., 62 Wis. 642, 22 N. W. 827; Holland v. Seven Hundred &c. Tons Coal, 36 Fed. 784; Bridgewater &c. Co. v. Home &c. Co., 59 Fed. 40; Jones v. George, 61 Tex. 349; Pacific Exp. Co. v. Darnell, 62 Tex. 639; Elizabethtown &c. R. Co. v. Pottinger, 10 Bush. (Ky.) 185; Barker v. Mann, 5 Bush. (Ky.) 672, 679.

61 Ashe v. De Rossett, 5 Jones L. (N. Car.) 299; Mace v. Ramsey, 74 N. Car. 11; Hopkins v. Sanford, 41 Mich. 243, 2 N. W. 39; Howe v. North, 69 Mich. 272, 37 N. W. 213.

62 Booth v. Spuyten Duyvil &c. Co., 60 N. Y. 487; Barnes v. Brown, 130 N. Y. 372, 29 N. E. 760.

63

ages a probable or natural consequence of a breach of the contract; a subsequent notice of such circumstances cannot affect the original contract. It has been held that parol proof is admissible to prove the purpose for which the property was to be used which was the subject matter of the original written contract, as this would tend to prove what the parties had in contemplation at the time of the execution of the original contract, and thereby show the amount of damages.64

§ 1982. Special damages-Counsel fees.-The question of the right to recover counsel fees as a part of the damages has given rise to conflicting decisions in various jurisdictions. In some states the rule is now established that in all actions where the act complained of is tainted by fraud, or involves the ingredient of malice, or insult, the jury, which has the power to punish, has necessarily the right to include in its estimate of damages proper and reasonable counsel fees.65 In jurisdictions where the right of the jury to assess such damages is conceded the further question has arisen as to the right of a party to make proof of the value of such fees. In Ohio, and in some other jurisdictions, such right has been denied and this power given to the jury in the absence of all proof. On this subject in one case it was said: "No evidence in this case appears to have been given to the jury on the subject of counsel fees; nor do we think such evidence ought to have been given or received. But the fact that the plaintiff would necessarily be subjected to expenses of this kind, was properly taken into consideration and allowed as a circumstance in the case patent before them." This court classifies counsel fees as consequential rather than special damages, and holds that they may be recovered without either

Bradley v. Chicago &c. R. Co., 94 Wis. 44, 68 N. W. 410; Missouri &c. R. Co. v. Belcher, 89 Tex. 428, 35 S. W. 6.

"Dempsey v. Hertzfield, 30 Ga.

866.

Sexton v. Todd, Wright (Ohio) 316; Roberts v. Mason, 10 Ohio St. 277; Finney v. Smith, 31 Ohio St. 529; Stevenson v. Morris, 37 Ohio St. 10; Diehl v. Friester, 37 Ohio St. 473; Cowden v. Lockridge, 60 Miss. 385; Taylor v. Morton, 61 Miss. 24; see ante, §§ 1762, 1763.

Roberts v. Mason, 10 Ohio St.

277; Hudson v. Voigt, 15 Ohio C. C. 391; Hendricks v. Fowler, 16 Ohio C. C. 597; Marshall v. Betner, 17 Ala. 832; Dothard v. Sheid, 69 Ala. 135; Baldwin v. Walker, 94 Ala. 514, 10 So. 391; Welch v. Durand, 36 Conn. 182; Linsley v. Bushnell, 15 Conn. 225; Mason v. Hawes, 52 Conn. 12; Titus v. Corkius, 21 Kans. 722; New Orleans &c. R. Co. v. Allbritton, 38 Miss. 242; Thompson v. Powning, 15 Nev. 195; Bracken v. Neill, 15 Tex. 109; Flack v. Neill, 22 Tex. 253; Winters v. Cowen, 90 Fed. 99.

pleading or proof and has adjudged that the allowance rests within the discretion of the jury and on this point it has said: "In leaving this matter to the discretion of the jury under all the facts before them, without proof of this character, we only follow the analogy of the law in all such actions, where, without actual proof of the amount of damages the jury may in their estimate allow such an amount as will be adequate for the injury under all the circumstances." In Alabama the rule is stated as follows: "In cases where malice is the gist of the action and vindictive damages recoverable, the fees paid to counsel for defending the original suit, if reasonably and necessarily incurred, may be proved and taken into consideration by the jury in the assessment of damages."68 However, authority is against the proposition of the recovery of attorney's fees as part of the damages. Connecticut has expressly held that in estimating vindictive damages the jury may take into consideration the fees of the plaintiff's counsel in the case. In an early New York case in an action for negligence, in speaking of an instruction on the question of the measure of damages, the judge said: "The charge as to expenses beyond taxable costs and counsel fees in conducting the suit as a particular item of the damages to be taken into account, I am also inclined to think was erroneous. These have been fixed by law, which is as applicable to cases sounding in damages as in debt." In Indiana and Iowa, the courts of last resort have held that attorneys' fees could not be recovered as damages.72

70

69

§ 1983. Special damages-Expenses of trial.-The courts which hold that attorneys' fees may be recovered as a part of the damages, and

67 Stevenson v. Morris, 37 Ohio St. 10.

es Marshall v. Betner, 17 Ala. 832; Higgins v. Mansfield, 62 Ala. 267; Bolling v. Tate, 65 Ala. 417; Dothard v. Sheid, 69 Ala. 135; Flournoy v. Lyon, 70 Ala. 308; Baldwin v. Walker, 94 Ala. 514, 10 So. 391.

09 Day v. Woodworth, 13 How. (U. S.) 363; Teese v. Huntingdon, 23 How. (U. S.) 2; Oelrichs v. Spain, 15 Wall. (U. S.) 211; Flanders v. Tweed, 15 Wall. (U. S.) 450; Pacific Ins. Co. v. Conrad, Baldw. (U. S.) 258; Blanchard Gunstock &c. Co. v. Warner, 1 Blatch. (U. S.) 258; Stimson v. Railroads, 1 Wall. Jr. (U. S.)

some others, hold that the expenses of the trial may be included by the jury in estimating the damages. This term seems to include not only the costs in the case but any actual and legitimate expenses incurred by the plaintiff in relation to the action and prior to its beginning. In one case the court said, referring to the damages under such circumstances: "They shall be sufficient to cover all the expenses and costs of the plaintiffs in litigating the matter including their loss of time,— such as will make them whole."73 The Supreme Court of Connecticut, in an action involving expenses in addition to the taxable costs of the case as part of the damages, propounds this significant question: "And shall a defendant, who has refused redress for an unprovoked and severe personal injury, and thus driven the plaintiff to seek redress in the courts of law, be permitted to say, that the trouble and expense of the remedy was unnecessary, and was not the necessary result of his own acts, connected with his refusal to do justice?" The question is answered by quoting from a former case in which it was said: "We cannot, at this day, shut our eyes to the truth known by everybody that taxable costs afford a very partial and inadequate remuneration for the necessary expenses of defending an unfounded suit." In a later case, where a re-trial was made necessary by the death of a juror, the same court held that the jury might consider the expenses of the former trial in assessing plaintiff's damages.75 In a later case the court limited this rule to recovery in actions where vindictive or punitive damages might be given. To permit the introduction of evidence as to such items of damages they should be stated in the pleadings with particularity." In an action for a breach of contract for a sale or exchange of property, the complaining party may prove as a part of his damages the expenses incurred by him in endeavoring to perform his part of the contract before he is informed that the defendant has put it out of his power to perform the contract.78 But in many jurisdictions it is held, and the weight of the authorities seems to be, that no items of expenses in connection with the trial of the case can be considered or allowed as damages by the jury.79

T3 Stevens (Ohio) 121.

76

V. Handly, Wright

74 Linsley v. Bushnell, 15 Conn. 225; Whipple v. Fuller, 11 Conn. 582.

"Noyes v. Ward, 19 Conn. 250. 7 St. Peters Church v. Beach, 26 Conn. 355.

"Bradstreet Co v. Oswald, 96 Ga. 396, 23 S. E. 423.

78 Warren v. Chandler, 98 Iowa 237, 67 N. W. 242; McCafferty v. Griswold, 99 Pa. St. 270; Baltimore &c. Soc. v. Smith, 54 Md. 187.

79 Barnard V. Poor, 21 Pick. (Mass.) 378; Henry v. Davis, 133

§ 1984. Earning capacity-Impairment.-A loss or impairment of earning capacity, as previously noted, is one of the elements of damages which the jury may properly consider when supported by evidence. Where a person, by reason of an injury, is incapacitated from following his usual and ordinary vocation for any stated time; or where the injury is such that he can never again engage in his former occupation or business, it is held proper to show these matters to the jury by the most available evidence for that purpose. Such evidence is admissible for the purpose of aiding the jury in estimating the value of the time lost, but it is not given as an exact basis of damages, but as a guide to the jury to aid them in the exercise of the discretion lodged in them, and to assist them in arriving at a just amount.80 It is held that the earning power of an injured person "involves an inquiry into the value of the labor, physical or intellectual, of the person injured before the accident happened to him, and the ability of the same person to earn money by labor, physical or intellectual, after the injury was received."81 The Indiana Supreme Court approved an instruction given by the trial court, which was as follows: "You may take into consideration the expenses actually incurred, loss of time occasioned

Mass. 345; Faneuil Hall Ins. Co. v. Liverpool Ins. Co., 153 Mass. 63, 26 N. E. 244; Newton Rubber Works v. De Las Casas, 182 Mass. 436, 65 N. E. 816; Grotius v. Ross, 24 Ind. App. 543, 57 N. E. 46; Indianapolis &c. Co. v. Pugh, 6 Ind. App. 510, 33 N. E. 991; Thompson v. Powning, 15 Nev. 195; Hicks v. Foster, 13 Barb. (N. Y.) 663.

80 Alabama &c. R. Co. v. Yar brough, 83 Ala. 238, 3 So. 447; Alabama &c. R. Co. v. Frazier, 93 Ala. 45, 9 So. 303; Rio Grande &c. R. Co. v. Rubenstein, 5 Colo. App. 121, 38 Pac. 76; Atlanta St. R. Co. v. Beauchamp, 93 Ga. 6, 19 S. E. 24; Broyles v. Prisock, 97 Ga. 643, 25 S. E. 389; City of Indianapolis v. Gaston, 58 Ind. 224; Town of Elkhart v. Ritter, 66 Ind. 136; City of Logansport v. Justice, 74 Ind. 378; Cleveland &c. R. Co. v. Gray, 148 Ind. 266, 46 N. E. 675; Chicago &c. R. Co. v. Posten, 59 Kans. 449, 53

Pac. 465; Chicago &c. R. Co. v. Scheinkoenig, 62 Kans. 57, 61 Pac. 414; Ballou v. Farnum, 11 Allen (Mass.) 73; Sherwood v. Chicago &c. R. Co., 82 Mich. 374, 46 N. W. 773; Griveaud v. St. Louis &c. R. Co., 33 Mo. App. 458; New Jersey &c. Co. v. Nichols, 33 N. J. L. 434; Lincoln v. Saratoga &c. R. Co., 23 Wend. (N. Y.) 425; Hanover R. Co. v. Coyle, 55 Pa. St. 396; Pennsylvania R. Co. v. Dale, 76 Pa. St. 47; Wade v. Leroy, 20 How. (U. S.) 34; 4 Sutherland Damages, § 1246.

81 Goodhart v.. Pennsylvania R. Co., 177 Pa. St. 1; 35 Atl. 191; Wade v. Leroy, 20 How. (U. S.) 34; Davidson v. Southern Pac. Co., 44 Fed. 476; Richmond &c. R. Co. v. Elliott, 149 U. S. 266, 13 Sup. Ct. 837; Vicksburg &c. R. Co. v. Putnam, 118 U. S. 545, 7 Sup. Ct. 1; Pennsylvania R. Co. v. Dale, 76 Pa. St. 47; Nones v. Northouse, 46 Vt. 587.