Bond Willis v. . Hilton , 47 N.C. 149 ( 1855 )

The plaintiffs and defendant were part owners of the schooner SarahLouisa: a cargo belonging, one half of it to Short Co., and the other half to the owners of the vessel, was put on board. The defendant agreed to act as master of the schooner from Plymouth to the West Indies and back, and the cargo was consigned to him. The defendant, in charge of the vessel, left Plymouth on the 26th or 27th of December, 1848; arrived at New-Berne, (where it was understood he should call to have a sail repaired,) on 30th December; left that place about 6th of January, for Ocrocoke, and returned to New-Berne on 26th January. Sometime in February, the defendant put one Capt. Moss in charge of the schooner as master, (quitting her himself,) and about the latter part of March, the schooner, under the command of Moss, left New-Berne and made her voyage to the West Indies. She returned in April or May. The usual time of a voyage to the West Indies is two months. It was in evidence, on behalf of the defendant, that the return to New-Berne and the detention there, were caused by the necessity for repairs, which were made on the vessel at that place.

It was in evidence that the value of the vessel was $10 per day, of which sum, the captain's wages constituted a part, and were equal to $1.50 per day. The plaintiff's counsel contended that the defendant was guilty of neglect in the delay; also in abandoning the vessel to Moss; and that they were entitled to recover for these breaches of the duties arising out of the contract.

His Honor charged the jury that, inasmuch as the plaintiff's had not declared on the contract, they could not recover for any violation of it, merely.

That if the defendant had omitted to act with ordinary skill and diligence, and plaintiffs had suffered damage thereby, they could recover to the extent of that damage.

That the mere fact that the defendant had turned the vessel over to Moss, did not entitle the plaintiffs to recover any thing, unless they satisfied them that they had sustained damage thereby. To these instructions plaintiffs excepted for error.

Verdict for the defendant. Judgment and appeal. When this case was before the court at June Term, 1853, it was decided that the action was properly brought in "Case." Busb. Rep. 308; see also,Williamson v. Dickens, 5 Ired. R. 269. The controversy arises upon the charge of his Honor, who tried the cause below upon the question of damages; the jury were informed that "inasmuch as the plaintiffs had not declared on the contract, they could not recover for any violation of it merely." And again, "the mere fact that defendant had turned the vessel over to Moss, did not entitle the plaintiffs to recover any thing, unless they satisfied the jury that they had sustained damage thereby:" in other words, that to entitle the plaintiffs to recover, they must show that they had sustained actual damages. In this opinion we do not concur.

The defendant had entered into a contract with the plaintiffs, as owners of the vessel, to navigate her as Master, to the West Indies and back to Plymouth. He took charge of her, and on his way, at New-Berne, he put a Capt. Moss in command, and abandoned the vessel: No special loss or damage was proven by the plaintiffs. Under these facts, the sole question is, are the plaintiffs entitled to recover any thing of the defendant? We hold that they are.

Wherever there is a breach of an agreement, or the invasion of a right, the law infers some damage, and if no evidence is given of any particular amount of loss, it gives nominal damages, by way of declaring the right, upon the maxim, ubi jus ibi remedium. In Ashby v. White, 1st Salk. 19, Lord HOLT declared that "every injury imports a damage, though it does not cost the party a farthing." This principle has been applied to a variety of cases where the plaintiff's recovery is in damages: thus, in an action for words spoken, where no actual damage has been sustained: so, trespass to the person or to realty. A remarkable case, as exemplifying this doctrine, is that of Taylor v. Henniker, 12 Adol. Ellis 488. There the action is in case, brought by a tenant against his landlord for illegally distraining for more rent than was due: it appearing that the proceeds of the sale were insufficient to satisfy the rent actually in arrear, the jury found a verdict for one shilling: a motion was made on the part of the defendant for a nonsuit, which was denied. DENMAN, Chief Justice, said: "there was a wrongful act of the defendant, and though by reason of the nature of the goods taken, falling short of the actual rent due, no real damage was sustained, yet there was a legal damage and cause of action, for which the plaintiff was entitled to a verdict." In Laffin v. Willard, 16 Pick. 64, a sheriff had neglected to return an execution: the action was in case, and the court declared that though there were no actual damages proved, where there is a neglect of duty, the law presumes damages, and the plaintiff was entitled to a verdict for nominal damages. In Whittimore v. Cutter, 1 Gal. 429, Justice STORY says: "we are of opinion that where the law gives an action for a particular act, the doing that act imports, itself, a damage to the party: every violation of a right imports some damage, and if none other be proved, the law allows a nominal damage." The rule, that the invasion of a right gives, in all cases, a claim to nominal damages, applies equally to matters of contract: thus in an action brought against a banker for refusing payment of a check, although in funds, no actual damage being shown, the court of King's Bench decided that the plaintiff was entitled to nominal damages, Marzetti v. Williams, 1 Barn. Adol. 415. See Sedgewick on the measure of damages, 46. In every contract implying a duty to be performed, the neglect of that duty gives, in law, a cause of action to the opposite party under the maxim, ubi jus ibi remedium: and where the law gives an action, it gives damages for the violated right, and if no actual damage be shown, then the plaintiff is entitled to nominal damages.

In this case, the defendant had contracted to carry the vessel of the plaintiffs, to the West Indies and back: he was in duty bound so to do: the plaintiffs had acquired a right to his services: to desert the vessel, therefore, before the completion of the voyage, was a violation of that right.

The authorities cited, show that it is no answer, except as to thequantum of damages, that the plaintiffs had sustained no actual injury by the substitution of Moss as Captain. The defendant had violated his duty and broken his contract: the plaintiffs had a right to bring their action on the contract, or in tort, and to allege the gravamen to consist in a breach of duty.

His Honor, below, erred in his instruction to the jury, that in the latter case, the plaintiffs could not recover, unless they showed substantial injury.

PER CURIAM. Judgment reversed.