Lance v. Apgar

38 A. 695, 60 N.J.L. 447, 31 Vroom 447, 1897 N.J. LEXIS 41

Opinion

The opinion of the court was delivered by

Van Syckel, J.

This suit was brought to recover damages for cutting timber upon the lands of the plaintiffs. The evidence produced on the trial below, on the part of the plaintiffs, showed that the cutting of the timber in question was” done partly before suit brought and partly .after the commencement of the suit. The testimony also showed the damage done by all the cutting, but did not show what portion of the damage was to be attributed to so much of the cutting as was done before the institution of the suit. On motion of the defendant’s counsel, the trial court thereupon nonsuited the plaintiffs for the reason that the jury could not, under the evidence, measure the extent of the injury and ascertain the amount of damages recoverable in the suit.

At common law the breach of a contract or the committing of a trespass upon the rights of another was, per se, a legal injury from which some damage to the plaintiff would be inferred.

If the extent of the injury is not proven, nominal damages only can be recovered.

Chief Justice Beasley, in Golden v. Knapp, 12 Vroom 215, states the rule accurately as follows:

“ Where actionable misconduct is shown on the part of the defendant on the breach of a covenant, the law implies nominal damages at the least.”

This accepted rule was enforced by this court in Furniture Compamy v. Board of Education, 29 Vroom 646.

The nonsuit was improperly ordered, and the judgment below should therefore be reversed.

For affirmance—None.

For reversal—The Chief Justice, Collins, Depue, Dixon, Garrison, Lippincott, Ludlow, Van Syokel, Adams, Bogert, Hendrickson, Nixon. 12.