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J. G. (Jabez Gridley) Sutherland.

A treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 5) online

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§ 1259.

right to damages, survival, § 7, n 3.

vendor and purchaser, breach of contract by vendor, damages,
suits for specific performance, § 590.

Abduction

elements of damage, mental suffering, § 95.

exemplary damages, allowance in actions for personal injuries,
§ 1253.
enhancement and mitigation, wealth of defendant, scope of in-
quiry, § 405n.
restriction and denial, Massachusetts rule, § 397.
losses as elements of damages, expenses to prevent or lessen damages,

§88.
mental anguish, necessity that anguish proceed from act causing

physical injury, § 95,
mitigation of damages, admissibility of evidence, § 1255.

Ability Impaired

see Earning Capacity.

Abortion

see Miscarriage.

seduction, damages recoverable, exemplary and compensatory dam-
ages, evidence to be considered, § 1283.

Absence

creditors, interest, rate applicable after debt is due, § 309.

Abstracts of Title

negligence of abstractor, consequential damages, § 705.

examination of record, contract for particular work, contractor's

liability, consequential damages for defective work, § 705.

indemnity, liability for losses and expenses, proximate result of

act complained of, § 84.
interest in actions for torts^ § 355.

losses as elements of damage, what losses consist of, § 79.
measure of agent's liability, defaults in regard to bills and
notes, § 776.
vendor and purchaser, breach of contract by vendor, measure of dam-
ages, conflict of American decisions, § 579.
nominal damages, § 582.
damages recoverable by purchaser against vendor of land, ad-
justment of counter demands on rescission, § 587.
measure of damages, English rule application, § 581.
nominal damages, elements of damages, § 582.



INDEX. 5741

Abstracts of Title — continued,
vendor — continued.

damages recoverable by vendor against purchaser, necessity that
seller convey perfect title, effect of condemnation pro-
ceedings, § 672.

fees, breach of contract by vendor, rescission, adjustment of
counter demands, § 587.

interest on purchase money, action by vendor against purchaser,
§577.

necessity that vendor convey perfect title, § 572.

Abuse of Process

see Malicious Prosecution; Process.

Abusive Language

see Assault and Battery.

acts of servants, exemplary damages, parties liable, master's liability

for acts of servant, § 410.
carriers of passengers, damages recoverable by passenger, verdicts
excessive, § 953n.
ejection of passenger, exemplary damages, enhancement and
mitigation, wealth of defendant, scope of inquiry, § 405.
mental anguish independent of other injury, § 94^.
physical and mental suffering of passenger, injury to character,
§942.
character as affecting damages for personal injuries, § 94n.
miscarriage, consequential damages, nervous shock without impact,

right to recover damages, § 24.
mitigation of damages, words as provocotion for assault, § 151.
servant discharged, contracts for services, necessity of full perform-
ance of contract, § 686.
sick person injured, consequential damages, act or omission as

proximate cause of damage, § 29.
trespass, consequential damages, proximate consequences of act or
omission, wilful or malicious injuries, § 44.
elements of damage, insults, § 1028.
trespass to real property, aggravation and special damages, § 1029.

Abutting Owners

see Highways and Streets.

Acceptance

see Bills and Notes.

Accident

attachment, forthcoming bonds, conditions, breach, § 517.

bills and notes, partial failure of consideration, nature of defense,

cross action, § 546.
bonds of employees, contracts not to be extended by construction,

rule as to bonds of surety companies, § 725n.
business injured, certainty of damages, tortious interference with

business, § 70.
civil damage laws, consequential damages, extension of liability by

statutes, § 16.
consequential damages for torts, right to damages, § 16.
contract for particular work, breach, accident preventing perform-
ance, contractor's liability, §700.
employer's liability for delaying or stopping work, recovery on
contracts or quantum meruit, consequential losses, mitiga-
tion of damages, § 713.
contracts for services, necessity of full performance, inability to
perform, § 689.
Suth. Dam. Vol. V.— 57.



5742 INDEX.

Accident — continued.

covenants for title, breach, mitigation or prevention of damages,
§601.
object of covenants, indemnity if title fails, § 591.

covenants of seizin and good right to convey, breach, mitigation or
prevention of damages, § 601.

delay in transportation, negligence, proximate cause, § 90.3.

falling from train, consequential damages for torts, liability, illus-
tration, § 18.

landlord and tenant, covenant for repairs, § 855.

partial destruction of demised property, effect as to rent, § 851.

replevin bonds, judgment, what may be shown in defense or in miti-
gation, § 507.

sales, breach of contract by seller, non-delivery of property contracted
for, damages in favor of vendor when delivery is impossible,
§655.

salvage service, necessity that property be saved, § 718.

Accident Insurance

see Insurance. '

Accommodation Paper

see Bills and Notes.

Accord and Satisfaction

accrual of actions, tender stopping interest, time of making tender,

§ 386.
agreement, necessity of full execution, § 252.
composition with creditors, § 250.
compromise of disputed claim, § 251.
consideration, § 247.

act or promise which is new consideration, sufficiency, § 249.
definition, §§ 214, 246.

parties, joint liability, extinguishment or severance, § 136.
payment, definition, § 214,

part of debt paid, agreement to discharge whole^ §§ 248-248a.

who mav make payments, § 230.
pleading, § 232.

necessity of pleading, § 232.
release, distinction, § 254.
replevin bonds, judp-ment, what may be shown in defense or in

mitigation, § 507.
rescission or exoneration before breach, § 252a.
tender, conditions, tender must be unconditional, § 270.

Accounts

accord and satisfaction, consideration, compromise of disputed claim,

§ 251.
action on account, payment, mode of payment. § 215.
agents, duty to inform principal, reports, § 769.
effect of misrepresentations, § 784.
failure to sue, measure of agent's liability, defaults in regard to

bills and notes, § 775.
false reports, § 774.

riffhts of agents, reimbursement of expenditures, § 789.
violation of duty, secret profits § 76S,
assessment of damages, admission of damages by default or demurrer
§ 429. '

assignments, congpnuential damno-eg. cprtainty of damages, proxi-
mate result of act or omission, § 53.
attorney's fee, interest, allowance of interest on judgments, § 333n.
banks, interest on stockholders' statutory liability, § 343.



INDEX. 5743

Accounts — continued.

book accounts, breach of contract, recovery on quantum meruit,
§ 679n.
destruction, necessity of alleging special damages, illustrations,

§420.
evidence of payment, § 233.
breach of contract, damages recoverable by purchaser against ven-
dor of land, measure of damages, nominal damages, § 582.
brokers, liability, § 786.

carriers, delay in delivery of account, statute of limitations operat-
ing to bar account, liability of carrier, § 914.
collection, suretyship, contract not to be extended by construction,

§727.
contracts for services, evidence of value, § 680.

implied contracts, duty to pay for services rendered, § 679n.
evidence, intendments against defendant for holding back evidence,

§439.
factors, duty to render accounts, effect of misrepresentation, § 784.
guardisn and ward

bonds, liability as between sets of sureties, § 498.
liabilitv of sureties, § 496.
insurance, proof of loss, information of insurer. § 811.
interest, allowance of interest on accounts, §§ 349-350.
as damages incident to debt. § 372n.

comnensation, tacit agreement to pay interest on accounts, § 322.
compound interest, computation, application, and effect of partial

payments, § 378.
conflict of laws, law governing as to interest, parties in different

states, § 360.
delay, payment unreasonably and vexatiously delayed, § 323.
deTTianrl, Tipr-pssity of. S 351.
infant 's liability for interest, § 338.
mutual accounts, allowance of interest, § 349.
pleading, how interest claimed in pleading, § 387.
right to interest between partners, § 342.
items, assessment of damafyps, default or demurrer as admission, § 429.

cause of action, splitting, § 111.
mutual credit, comnensation by mutual demand, § 148.
officers, bonds, neglect of duty by other offieers^ effect, § 482.
partnership, interest as between partners, § 342.
payment, anplication by creditor. § 239.

creditor's rieht to make application, § 238.
debtor's right to direct application, § 235.
general payment applied to oldest debt, § 243.
pro rata application, § 242.
pleading, interest, manner of claiming interest in pleading, § 387.
probate bonds, estates of decedents, bonds for administration, § 493.
guardian's bond, initigation of damriges, §497.
sureties' liabilities, §496.
sales, executed sales, recovery by seller after rescission of contract,

price fixed by third party, § 643.
trusts, failure to account, interest, allowance against agents, trustees
and officers, § 353.

Account Stated

evidence of value of services, opinion evidence, § 680.
interest, allowance of interest on accounts, § 349.
compound interest, § 373.

computation, manner of claiming interest in pleading, § 387.
trover, money securities, action, measure of damages, § 1132.



5744 ^ INDEX.

Accrual of Damages
see Actions.

Accusations

see Abusive Language.

Acetylene Gas

sales, warranty of quality, damages for breach, interest, expenses
and special injuries, § 675.

Acknowledgments

defects, breach of covenant of warranty and quiet enjoyment, dam-
ages, expenses, costs and counsel fees as damages, § 619.
official bonds, measure of damages against sureties, § 488.
private injuries covered by official bonds, § 487.

Acquiescence
see Waiver,
breach of contract, damages recoverable by purchaser against vendor

of land, adjustment of counter demands on rescission, § 587.
contract for particular work, contractor's liability for damages for
delay, rental value, expenses, § 703.
material not furnished, effect of not abandoning contract, con-
tractor 's rights, § 714.
creditor, tender, waiver and omission of tender, sufficiency of excuse,

§273.
liquidated damages, waiver of right to liquidate damages, § 299.
vendor and purchaser

breach of contract by vendor, measure of damages, nominal
damages, § 582.
rescission, adjustment of counter demands, § 587.
interest on purchase money, action by vendor against purchaser,

§ 577.
title, time for conveyance of good title, § 572.

Act of God

attachment, forthcoming bonds, failure to deliver i)roperty, damages,

§517.
bonds, impossible conditions, effect, § 476.
carriers of goods, duty of carrier, care of property, § 916.

liability for consequential damas-es, intervening cause, § 37.
consequential damages, liability as affected by extraordinary circum-
stances, illustrations, § 35.
torts, intervening cause, § 37.
contracts for services, express contract, necessity of full performance,
inability to perform, § 689.
recovery on quantum meruit, § 686.

stipulation for notice where servant quits employ, § 690.

contracts for works, accident preventing performance, liability, § 700.

demands for part performance of entire contract, allowance of

recovery on quantum meruit, action by contractor against

employer, § 709.

crops, landlord%nd tenant, rent payable in specific articles, recovery,

§ 846.
rent, recovery of rent payable in snecific articles or taxes. § 846.
replevin bonds, actions, defenses, mitigation of damages, § 507n.
sales

breach of contract by seller, delivery impossible, damages, § 655.
non-delivery of property contracted for, damages in favor of
vendor when delivery is impossible, § 655.
vessel wrecked, consequential damages, intervening cause, canal boat
delayed and wrecked by flood, § 37.



INDEX. 5745

Actions

abandonment, accord and satisfaction, act or promise which is new

consideration, sufficiency, § 249.
accrual of cause of action, attachment bonds, § 510.

injunction bond, right of action, when it arises, parties who mav

sue, § 522. •'

interest, suspension, tender stopping interest, when tender may be

made, § 385.
splitting causes of action, damages accruing subsequent to

action, § 113.
suretyship, contribution, accrual of right of action, § 759.

express indemnity, contracts varying from indemnity, causes

of action, measure of recovery, § 765.
remedy for indemnity, accrual of right of action, § 747.
tender stopping interest, time of making tender, § 386.
actionable injuries, right to damages, nominal damages, § 9.
agency, authority, agent acting without or in disregard of authority
damages, § 787.
- reciprocal obligations of principal and agent, secret profits, form
of action against agent, §§ 768-769.
breach of contract not to sue, elements of damage, losses, § 79.
breach of covenants for title, measure of damages, nominal damages.

number of actions, § 600.
breach of covenants of warranty and quiet enjovment, measure of

damages, suit against remote covenantor, § 614.
cause of action as chose in action, § 7.

causes of action, assignment, entirety, effect of release by or death
of one of several entitled to entire damages, § 133.
assignments for benefit of creditors, severance of entire demand,

attachment, right of action, damnum absque injuria § 3
bills and notes J j a

consideration, partial failure of consideration, admissibility
of evidence, § 547. "^

availability of defense, § 545.
demand, what is an entire tlemand, s 108.

elements of damages, motive, distinction made for bad motive
contracts, § 99. '

entirety, Ch. IV, §§ 106-142.

assumpsit, implied assumpsit follows consideration § 13"
cause of actions not divisible, § 106. '

continuance of wrong not presumed, § 126.
contracts, continuous breach of contract or infraction of

right not an entirety, § 125.
parties, actions under statutes, § 129.

contract apportioning legal interests, § 131.
damages to parties jointlv injured, entirety of § l^g
joinder of defendants; effect of non-joinder and mis-
joinder, § 135.
misjoinder of plaintiffs, objection as fatal § 134
recovery b^' person in whom legal interest is 'vested,
s loO. '

release or death of one or several entitle"^ to damages, § 133
_ _ successive actions for damage to real property S 115
joinder, contract to do several things successively or one thing
continuously, § 110. i^"i"s

pain and suffering and pecuniary loss in case of death § 1336

trespass to real property, suit by executors, damages § 1013'

§ 298 ^"^^''' effect of stipulation upon right of' action,

prospective damages, personal injuries, § 123.
public officer, right of action against, §484."



5746 INDEX.

Actions — continued.

causes of action — continued.

recoupment, constituent features of, § 172.

right to damages, nature, § 7.

set-off, counterclaim and recoupment, cross-claim must rest on

contract or subject-matter of action, § 178.
splitting, breach of contract, § 110.
continuing obligations, § 112.
contract of indemnity, § 117.

contract to do several things successively or one thing con-
tinuously, § 110.
damage to person and injury to person; injury to person

and damage to reputation by same act, § 118.
damage to real property, §§ 114-116.
damages accruing subsequent to action, § 113.
demand, what is an entire demand, § 108.
distinction between demands which are single or separable,

§110.
entire demand may be severed, § 109.
items of account, § 111.
liquidated damasres, certainty, contracts for payment of

money, § 287.
necessity and advantage of successive actions, § 127.
parties to issue, §§ 138-142.
present and future damages, § 107.
prospective damages, § 120.

remedies, what is not a double remedy, § 119.
torts, § 110.
suspension, payment by bill, note or check, § 226.
verdict, general verdict on several counts, effect, § 462.
what constitutes entire demand, § 108.
chose in action, covenant against incumbrances, assignment, § 621.
payment by note, bill or cheek, § 226.
sales, warranties of title, existence, ? 668.
corporations, transfer of stock, cause of action not divisible, separate

actions, S 106.
death, right of action at common law, § 1259.
failure to sue on account, measure of agent's liability, defaults in

regard to bills and notes, § 775.
forfeiture of right to damages, sales, breach of contract by seller,
non-delivery of property in market, damages recoverable by
buyer, § 651.
form of action, contracts for particular work, contractor's 'right to

payment, rights in insurance money, interest, § 706.
indemnity, contracts varying from indemnity, intent to indemnify,

when cause of action arises, measure of recovery, § 765.
injunction bonds, right of action, when it arises, who may sue, § 522.
liquidated damages, effect of stipulation on right of action, § 298.
malicious prosecution, unauthorized suit or appeal, liability for dam-
ages, § 1236.
motive in bringing action, damnum absnue injuria, § 3.
nuisance, successive actions, continuitv, damages recoverable in first

action, § 1039.
parties, action for bene^t of another, bills and notes, recovery of

principal sum, § 541.
payment, creditor's rio-ht to make application of payment, 5 238.
personal injuries, actions, number of actions maintainable, pros-
pective damages, § 1251.
probate bonds, execution of probate bonds, manner, recoveries which

may be had, § 494.
public officers, mode of redress for official dereliction, § 486.
right of action against officers, § 484.



INDEX. 5747

Actions — continued.

release, execution of release by or to one or several claiming or
liable, §257.
who may execute, § 256.
right to sue, damnum absque injuria, § 3.

when rights vests, § 7.
telegraphs and teleijhones, form of action for negligence in trans-
mitting message, § 972.
who may sue, § 972.
time of bringing action, wrongful dismissal of employee, measure of

damages, remedies, § 692.
tort or contract, trover, damages, general rule, exception as to place

of conversion, § 1109.
wrongful dismissal of employee, measure of damages, remedies, § 692.

Actors

see Theaters and Shows.

contracts for services, entire and apportionable conttacts, § 691.
injuries to actor, slander and libel, consequential damages, act or
omission as proximate cause of injury, § 29.

Actual Damages

see Compensatory Damages.

ad damnum, limit of recovery, erroneous claim of damages, § 417.

appeal and supersedeas bonds, instances of liability, specific con-
ditions, § 537.

attachment bonds, wrongful attachment, actual damages, § 512.
exemplary damages, § 514.

bail bonds in civil actions, measure of damages, § 539n.

"compensatory damages" defined, synonym of actual damages, § 3n.

contract for particular work, material not furnished, effect of not
abandoning contract, contract's rights, § 714.

covenants against incumbrances, breach, measure of damages, remote
losses, § 622.

covenants of seizin and good right to convey, breach, nominal damages
recoverable if actual loss not shown, § 597.

exemplary damages, basis of exemplary damages on actual damages,
nominal damages, § 406.

interest as compensation, § 320.

patents, infrineement, damages recoverable at law, profits as dam-
ages, 1185.

sales, acceptance of goods, liabilitv for not accepting, remedies of
seller, § 647.

vendor and purchaser, breach of contract bj^ vendor, defaulting
vendee 's right, § 586.
conveyance in consideration of non-pecuniary covenants,
measure of damages for breach, § 576.

verdict, amendment and correction of verdict, § 458.

excessive or insufficient verdict, power of court, remittitur, § 460.

Ad Damnum

amendments, bail bonds in civil actions, measure of damages, § 539b.

replevin bonds, actions, effect of judgment in replevin suit, § 506.
interest, pleading, how interest claimed in pleading, § 387.
limit of recovery, erroneous claim of damages, § 417.
pleading ad damnum, sufficiency, § 414.

demand for damages in code complaint, § 415.

Additional Damages

appealand supersedeas bonds, liability in state courts if judgment

is in part for money or in rem, § 534.
interest, tender stopping interest, time of making tender, S 385.



5748 INDEX.

Additional Damages — continued.

trespass, additional injury to land beyond taking away timber and
minerals, liability, § 1021.

Adjoining Landowners

see Lateral Support; Party Walls.

breach of contract to leave property vacant, elements of damage,

losses, § 79.
covenants, incumbrances, what are incumbrances, § 620n.
eminent domain, compensation, injury to property not taken, § 1065.
evidence of value, actual sales, § 447.

excavation, cause of action, entirety, successive actions for damage
to real property, § 114.
lateral support destroyed, consequential damages for torts, lia-
bility, illustration, § IS.
fences, consequential damages, fence statutes, § 20.
floods, elernents of damage, expense incurred to prevent or lessen

damage, extent of duty, § 90.
landlord and tenant, damages for not making repairs, special cases,

§ 860.
lateral support, excavation by railroad, consequential damages, § 18.
injuria sine damno, § 3.
injury to foundation of house, action for cost of repairing, items,

§860.
nominal damages, right to nominal damages, § 10.
removal of, lateral support, right to damages, § 1053.
trespass to real property, permanent wrong, damages, § 1017.
parties, joint and several liability for torts, § 141.
party walls, breach of covenants of warranty and quiet enjoyment,
measure of damages, existence of lien, satisfaction, § 609.
injuries, damages recoverable, § 1025.

consequential damages, certainty, liability for principal loss

extending to details and incidents, § 54.
mitigation of damages, consent of plaintiff to act complained
of, § 162.
pleading, § 166.
money paid, allowance of interest on money paid, § 327.
parties, joint and several liabil'ty for torts, § 141.
use of party wall, mitigation of damages, consent of plaintiff to
act complained of, § 162.
trespass, destruction of property, dn magics, compensation, § 1015.
permanent injury, estimate of damages, § 1017.

Adjustment

vendor and purchaser

breach of contract by vendor, adjustment of couiiter equities in
specific perform.ance, S 588.
rescission, adjustment of counter demands, § 587.

Administrators

see Executors and Administrators.

Admiralty

see also Vessels.

actions, right of action under statutes, measure of damages. § 1259.

appeal and supersedeas bonds in federal supreme court, § 532.

liability if judgment is in part for money or in rem, rule of
tr. S. Supreme Court, § 533.
carriers, duty of carrier, goods lost or injured, interest on damages,
§ 920.
freight charges, when pro rata freight is due, common law and
admiralty rules, § 890.



INDEX. 5749

Admiralty — continued,
carriers — continued.

interest on damages, § 920.
costs, interest, allowance of interest on judgments, § o33n.
death, right of action at common law, § 1259.

nominal damages, recovery, § 1264.
exemplar}^ damages, allowance, § 392.

rule of United States Supreme Court, § 392.
interest and damages awarded on appeal, § 538.
interest on judgments pending review, § 389.
judicial process, payment, mode of payment, § 216.
marine insurance, interest, allowance, money due on insurance policy
and on premium, § 346.
valued policies, admiralty and fire, § 806.
rules of Federal Court, interest on judgment pending review^, § 389.
salvage service, agreements, right to fix specific amount as compen-
sation for salvage service, § 716.
derelict property, amount recoverable, § 720.
forfeiture of right to compensation, § 721.
interest, conflict of laws, § 719.
nature of peril, duty of claimant, persons who may be salvors,

§ 717.
necessity of saving property, § 718.
requisites, parties liable, § 715.
salvors, definitions, § 718.
torts, Ch. XXXIX, §§1286-1296.
certainty of damages, § 1289.
collision cases, division of loss, contribution between joint

wrongdoers, § 1287.
contributory negligence, damages recoverable, § 1288.
difference between liability in admiralty and at common law,



Online LibraryJ. G. (Jabez Gridley) SutherlandA treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 5) → online text (page 141 of 192)