Damages to be NOTE.-Suydam vs. Jenkins, Sandf., pp. 614–621; see, also, note to Sec. 3553, ante; 1 Hilliard on Torts, pp. 133, 134, Sec. 27; Butler vs. Hicks, 11 Sm. & M., p. 78; Hall vs. Clark, 11 id., p. 187; Dennis vs. Barber, 6 S. & R., p. 420; Berry vs. Vantries, 12 id., p. 89; Taylor vs. Morgan, 3 Watts, p. 333; Hagar vs. McMains, 4 id., p. 418. See Sec. 3380, post, and note, as to property having "peculiar value." 3356. For the purpose of estimating damages, the value of a thing in action is presumed to be equal to that of the property to which it entitles its owner. NOTE. So held as to a note (Decker vs. Mathews, 12 N. Y., p. 313; Ingalls vs. Lord, 1 Cow., p. 240), or other debt (Thomas vs. Dickinson, 12 N. Y., p. 364; S. C., again, 23 Barb., p. 431), or an agreement to convey land.-Clowes vs. Hawley, 12 Johns., p. 484. This presumption is not conclusive.-Allen vs. Suydam, 20 Wend., p. 321; Ingalls vs. Lord, 1 Cow., p. 240; see Thomas vs. Dickinson, above cited. 3357. The damages prescribed by this Chapter are exclusive of exemplary damages and interest, except where those are expressly mentioned. NOTE.-Examine note to Sec. 3353, ante, as to purposes of this Chapter. 3358. Notwithstanding the provisions of this Chapter, no person can recover a greater amount in damages for the breach of an obligation than he could have gained by the full performance thereof on both sides, except in the cases specified in the Articles on Exemplary Damages and Penal Damages, and in Sections 3319, 3339, and 3340. NOTE. This is an established principle of equity (Skinner vs. White, 17 Johns., p. 357; rev'g S. C., 2 Johns. Ch., p. 526), which, since the union of law and equity, should be recognized as a rule of damages. See a decision upon a similar question in Russell vs. Roberts, 3 E. D. Smith, p. 318; see notes to sections referred to in the text. 3359. Damages must, in all cases, be reasonable, reasonable. and where an obligation of any kind appears to create a right to unconscionable and grossly oppressive damages, contrary to substantial justice, no more than reasonable damages can be recovered. NOTE.-James vs. Morgan, 2 Levinz, p. 111; Thornborow vs. Whitacre, 2 Ld. Raym., p. 1164. In the first case, the defendant had agreed to pay, for a horse sold to him, a farthing for his first shoe nail, two farthings for the second, four for the third, and so on, for the thirty-two nails in the horse's shoes. This, of course, amounted to many thousand pounds sterling, for which the plaintiff sued. But the Court directed the jury to assess the damages at the actual value of the horse, which was found to be eight pounds. In the latter case, a somewhat similar bargain was entered into, the damages claimed being an enormous sum. The action was sustained on demurrer, and it appears that the Court was, at first, about to give judgment for the whole sum demanded; but an amicus curiæ mentioning the case of James vs. Morgan, the action was settled, under an intimation of the Court, by the repayment of the consideration received for the contract (2s. 6d.), and costs. The rule of the text is fully sustained by that broad and general rule to which frequent allusion is made in this Chapter "that compensation is the principle which is the foundation of the measurement of all damages." This principle, it is contended, we believe universally, to be none the less true because there are difficulties in its application, nor because it is an undisputed fact that but few law suits for compensatory damages terminate in rendering exact or adequate compensation for the injury. The Courts are daily approaching more nearly a strict application of this rule, and as a necessary consequence are disposed to allow judgments in conformity with the obligations and the proofs, the "ad damnum" alone being the absolute limit. damages. 3360. When a breach of duty has caused no ap- Nominal preciable detriment to the party affected, he may yet recover nominal damages. NOTE.-Hamlin vs. Gt. North. Rail. Co., 1 H. & N., p. 408; Marzetti vs. Williams, 1 B. & Ad., p. 415. No damages, nominal or otherwise, are allowed in two classes of cases: first, in legal parlance, where there is “injuria 53-vol. ii. sine damno," and, second, where there is "damnum absque injuria." The first is where there is a wrong done without producing that result which the law recognizes as damage; and the second is where there is a wrong done for which there is no legal remedy; which is the case when the law authorizes one person to do a thing certain, which, when done as the law directs, injures another or his property.-Barbier vs. Police Jury, 15 La. An., p. 544. Nominal damages are frequently rendered in actions instituted (as is often done in this State in mining and other cases) to establish a right or to settle a claim or title. So, also, they are awarded in such actions as slander, libel, and the like, when a wrong has been done but no appreciable damage resulted to plaintiff.-Webb vs. Portland Manuf. Co., 3 Sumner, pp. 189-192, in which Story, J., treats of this subject at considerable length, and refers to the great case of Ashly vs. White, 2 Ld. Raym., p. 938; 6 Mod., p. 45; Holt, p. 524. Lord Holt's opinion in this case was sustained by the House of Lords, and that of his brethren overthrown. In a subsequently printed copy of this opinion, Lord Holt says: "It is impossible to imagine any such thing as an injuria sine damno.' Every injury imparts damage in the nature of it." B. R. and A. Water and Mining Co. vs. New York Mining Co., 8 Cal., p. 327; Weaver vs. Eureka Lake Co., 15 Cal., p. 271. 6 TITLE III. SPECIFIC AND PREVENTIVE RELIEF. CHAPTER I. General Principles. II. Specific Relief. III. Preventive Relief. CHAPTER I. GENERAL PRINCIPLES. SECTION 3366. Specific relief, etc., when allowed. 3367. Specific relief, how given. SECTION 3368. Preventive relief, how given. 3369. Not to enforce penalty, etc. 3366. Specific or preventive relief may be given Specific in the cases specified in this Title, and in no others. . 3367. Specific relief is given: relief, etc. when allowed. 1. By taking possession of a thing, and delivering Specific it to a claimant; 2. By compelling a party himself to do that which ought to be done; or, 3. By declaring and determining the rights of parties, otherwise than by an award of damages. NOTE.-Subd. 1.-This includes the ordinary remedies in the common law actions of ejectment and replevin, or as they may be called under the Code, actions for land, and actions for chattels. Subd. 2-This includes the specific performance of contracts, the delivery of things wrongfully detained, the surrender of instruments to be canceled, etc. Subd. 3.-This includes all cases in which a right is determined, without ulterior measures. Thus a contract may be declared void, although the instrument containing it is lost; a judgment may be annulled for fraud; the occupant of land may be declared to have a good title as against a claimant who does not himself sue, etc.-See note to Secs. 3380, and note, and 3384, post, on specific performance; and Title X, Chaps. I-VI, inclusive, of Part II of the Code of Civil Procedure; also, Part III of id., "of special proceedings of a civil nature." As particularly in point, Sec. 667 (200), Co. of Civ. Pro. Cal., embodying what has been known as the Specific Contract Act, as also other similar provisions is referred to. Construction of Act. Constitutional.-Galland vs. Lewis, 26 Cal., p. 46. Applicable to contract made before as well as after its passage.-Otis vs. Hazeltine, 27 Cal., p. 80. Simply provides a remedy for enforcing legal contracts.-Lane vs. Gluckauf, 28 Cal., p. 288. What is not gold coin contract.-Lamping & Co. vs. Hyatt, 27 Cal., p. 99. Special deposit on which by subsequent contract interest is agreed to be paid and received, loses its character of special deposit.-Howard vs. Roben, 33 Cal., p. 399. One partner may bind firm in specific contract.-Meyer vs. Kohn, 29 Cal., p. 278. Accounts with memorandum payable in gold coin, signed by defendant, is evidence relief, how given. Preventive relief, how given. of specific contract.-Cary vs. P. & C. Petroleum Co., 3368. Preventive relief is given by prohibiting a party from doing that which ought not to be done. NOTE. We will here simply refer to the writs of injunction, Secs. 525-533; of review, Sec. 1072; of prohibition, Secs. 1102-1105; of contempt, Secs. 1209-1222; all of the Code of Civ. Pro. Cal., and notes. The offices of these writs have been so frequently invoked and exercised in the practice in this State, owing to many local circumstances connected with business and trade, that we deem it unnecessary to annotate the settled rules governing the right to this relief and the method of obtaining it elsewhere than in the Co. of Civ., Pro. Cal. In Sec. 3420, post, of this Code, injunction is |