it seems well settled, both in England and this country, that on the covenant to repair, the suit may be brought before the end of the term, and that of course actual damages are recoverable.* In the same state,† where in the lease of a ferry the lessee covenanted to maintain and keep it in good order, and instead of so doing, diverted travellers from the usual landing to another landing owned by himself, by means whereof the tavern stand belonging to the plaintiff, the lessor, situated on the first landing, was so injured in its business as to become tenantless; it was held in an action by the landlord for breach of covenant, that he might assign and was entitled to recover as damages the loss of rent of the tavern stand. But in a subsequent decision, it was intimated that the breach of covenant in this case was regarded as fraudulent. In an English case,§ one Theobald had demised to the plaintiff certain brick earth for twenty-one years, with full power to the lessee to dig annually one half acre, and if he dug more, to pay £375 to the lessor for every half acre so dug, being after the rate that the whole brick earth was thereby sold or intended to be sold. The suit was trespass by the lessee for digging, and the jury found for the plaintiff with £550 damages, being the full value of the whole of the brick earth dug by the defendant. Chambre, J., considered that the plaintiff's beneficial interest was no more than the difference between the value of the earth taken by the defendant, and the price that the plaintiff must have paid for it if he had taken it himself, and that all the remaining interest was in reversion. But the court held otherwise. Mansfield, C. J., said, "The consequence of this taking by a stranger, and of this action against a stranger, is as between the lessee and the lessor, it must be taken to have been dug by the lessee; if this and what himself had dug did not together exceed the half acre per annum, there is nothing to pay; but if it exceeds that quantity, the lessee must pay the stipulated rent for the sur * Luxmore vs. Robson, 1 B. & Ald., 584. + Dewint vs. Wiltse, 9 Wend., 825. Blanchard vs. Ely, 21 Wend., 342. § Attersoll vs. Stevens, 1 Taunt., 183, 201. plus;" and a rule to set aside the verdict was discharged. Here the lease was treated as a sale of the earth. In an action on a covenant* to rebuild, contained in a lease, the defendants were assignees, and the plaintiff's wife tenant for life. The plaintiff contended that as tenant for life, she was entitled to recover general damages; in other words, the whole amount of damages sustained by the breach, and was not to be restricted to a compensation, measured by the extent of her particular estate. But Gibbs, C. J., at nisi prius, held otherwise; and that the tenant, in tail or in fee, might have an action on the covenant, and recover for the injury done to his reversionary interest.t In an action on an agreement to keep the premises of every description in good and sufficient repair at the tenant's expense, it was held that the defendant might show, and the jury might consider, the state of repairs at the commencement of the demise, in order to compute the damages for which the defendant was liable.‡ In an action,§ brought by lessee against lessor, on a lease containing a covenant "to repair, and keep in good and tenantable repair, all the external parts of the demised premises," it was proved that the corporation of Exeter, where the property was, had taken down the adjoining building; that this had weakened the wall of the plaintiff's house, and that he was obliged to remove. After repeated fruitless requests to the defendant to repair, the plaintiff gave him notice that he should go on to rebuild at his (the defendant's) expense. While the work was going on, the plaintiff removed to other premises, where he made some alteration to enable him to carry on his business, and restored things to their original state when his own building was completed, and claimed for all this in damages; but the Court of Queen's Bench said: "We are of opinion that the defendant was not bound to find the plaintiff another residence whilst the repairs went on, any more than he would have been bound to do so had the premises been consumed by fire ;" and, therefore, the items for rent and taxes * Evelyn and Wife vs. Raddish and others, 1 Holt, 548. This case was reconsidered in 7 Taunt., 410, but on another point. § Green vs. Eales, 2 Q. B. R., 225. of the house temporarily taken by the plaintiff, and those for alterations and restorations of it, were deducted, intimating, however, that if any evidence had been offered as to the length of time during which the plaintiff was obliged to be in another house, by reason of the defendant's delay in not acting on the notice given him by the plaintiff to repair, it might have been considered. And the actual cost of repairing and replacing the fixtures of the demised premises, of the surveyor's charge for superintendence, and for injury to the plate glass and plastering, were allowed, the two last on the ground that if the defendant had taken proper steps to support the wall whilst the carpenters were taking down the adjacent building, the injury would have been avoided. In an action brought on a covenant to keep one-half of a mill-dam in repair, it was held in Massachusetts that the plaintiff was entitled to recover only one-half of the actual expense incurred in repairing the dam; and that he was not entitled to damages for any loss of profits in business, in consequence of the neglect of the defendant reasonably to aid in making the repairs. In a case of trespass we have seen that such damages have been allowed;† and this distinction indicates the disposition, of which we find other proofs, to treat the wrong-doer, even where exemplary damages are not claimed, with more severity than the party who fails to perform a contract.‡ * * Thompson vs. Shattuck, 2 Met., 615. + White vs. Moseley, 8 Pick., 356. Supra, 80. In Tennessee, in covenant for breach of warranty of title to real estate, a verdict and judgment against the vendee of a tract of land in an action of ejectment, instituted by him against a third person in possession, with notice to the vendor to appear and prosecute, is no evidence of a better outstanding title; the court saying, "Where the vendee has been sued, he may notify the vendor to appear and defend the suit, and provision is made by law for making him defendant; but there is no principle by which he can be substituted as a plaintiff in the action of ejectment; and we, therefore, can think of no reason for notifying him in such a case to appear. Ferrell vs. Alder, 8 Humphreys, 44. CHAPTER VII. THE MEASURE OF DAMAGES IN ACTIONS ON CONTRACTS. General rules of compensation in personal actions founded on breach of contract, without penalty or liquidated damages-Damages limited to the results of the breach of contract-Motives of the defendant not inquired into-Exceptions. The contract controls the measure of damages-Exceptions. Tender, how far equivalent to performance in reference to damages-Compensation in cases of partial or imperfect performance of contract—Rule of damages on continuing agreements— Forms of action employed-Account obsolete. HAVING thus considered the rules which govern compensation in cases relating to real estate growing out of actions regarding its possession, its occupation, enjoyment, and contracts for its transfer, we now proceed to consider the great class of cases relating to personal property, including, of course, personal services. These actions generally grow out of negotiable paper, policies of insurance, the sale and warranty of chattels, contracts of agency, suretyship, or other express executory agreements sealed or unsealed, as well as those implied contracts which the law engrafts upon a legal liability. These subjects will be considered separately, but before doing so it will be well to bear in mind the general principles upon which the English and American law proceed in cases ex contractu. "Damages are recoverable in every personal action which lies at the common law."+ The language of the civil law is, Loco facti impraestabilis succedit damnum et interesse. We have already considered the subject of nominal dam * Sayer on Damages, ch. 1, 6. + Supra, 46, et seq. So in Tennessee, where there has been a breach of contract without actual loss, the plaintiff is at all events entitled to a judgment for nominal damages and costs. Seat vs. Moreland, 7 Humphreys, 575. ages, and seen how far the Courts go for the mere purpose of declaring a right. We are now to examine those cases of contract where substantial relief is demanded; and the two cardinal principles which will be found to pervade and regulate this branch of our subject, are-First, that the plaintiff must show himself to have sustained damage, or, in other words, that actual compensation will only be given for actual loss; andSecondly, that the contract itself furnishes the measure of damages. These two rules are closely interwoven with each other, and it is impossible to consider them altogether separately. The first rule is one of great importance. It excludes a large class of cases in which relief is often sought before an injury has occurred; and we shall have frequent occasion to refer to it. So a surety cannot sue his principal till he has paid the debt; nor a covenantee, for quiet possession, his grantor, till he has been evicted; nor a covenantee against incumbrances, till he has paid the incumbrance; nor a principal his agent, till he has paid the loss sustained by the latter's misconduct.* This rule is, however, not without exception, as we shall hereafter see. The second rule, that the contract itself furnishes the measure of damages, is of equal importance. We have already adverted to it generally, but we have now to consider it more fully, and at the same time to notice such exceptions to it as may be found to exist. We have already had occasion to observe the vague discretion that in the early books is attributed to the jury in the matter of damages. Thus in a case already referred to, as late as the reign of James I., where the plaintiff sued the defendant on a covenant that if certain land conveyed to him by the defendant, fell short of a specified measurement, he, the defendant, would pay a fixed sum for every deficient acre, and alleged that the number of acres wanting, would have amounted to the sum of £700, and the jury gave but £400 damages; it was held, that this was well found, and it was said, "if all the land was wanting, still the jury are chancellors, and can give such damages as the case requires in equity."+ * Legare vs. Fraser, 8 Strobhart, 877. + Supra, 21. Sir Baptist Hixt's case, 2 Roll. Abr., 703. Trial, pl. 9. In Kentucky, in an ac |