#### Owen Clinton v. Noah Mercer.

From Robeson.

.-A. agrees to deliver to I?, certain specific articles by a particular day, for which B agrees to pay him a certain price. A. neglects to deliver them, for which he is sued. Although upon the trial it do not appear that B has sustained any actual damage, he is entitled to recover nominal damages.

¿For the breach of all valid contracts, when proved to the satisfaction of a .Jury, the law requires damages to be assessed.

This was an action on the case, founded upon the undertaking-of-the Defendant to deliver to the-Plaintiff five hundred tar barrels by a particular day. The Defendant pleaded, non assumpsit; and upon the trial, it appeared in evidence that the Defendant, in the fall of the year 1715, agreed to deliver to the Plaintiff by the first day of'March then next ensuing, five hundred tar barrels, for each of which the Plaintiff agreed to pay him, upon the delivery of the barrels, thirty-five cents. The Plaintiff had prepared several tar kilns ready for burning by- the first of March, except as to the logging and turfing of them, which kilns would have yielded several hundred barrels of tar, but not *120as many as five hundred. The Defendant failed to deliver the barrels, or any of them, by the first day of March, nor did he deliver them afterwards. The Plaintiff did not ;lppiy f01. them, nor offer to pay the Defendant for them, until some time in May following, when he went to the Defendant’s house to demand the barrels, and the Defendant being from home, he informed the Defendant’s wife that he hád come to demand the barrels. The price of tar during the month of March, was one dollar and forty cents per barrel: It soon afterwards fell to one dollar, and continued at that price for a considerable time. The Court instructed the Jury, that if they believed the Plaintiff had not sustained any damage by the failure of the Defendant to deliver the barrels by the first day of March, they might find a verdict for the Defendant. If they were of opinion that he had sustained any damage, they should find for the Plaintiff. The Jury found for the Defendant,' and a rule was obtained to shew cause why a new trial should not be granted, on the ground of misdirection by the Court j which rule was sent to this Court, and

Tayxor, Chief-Justice,

delivered the opinion of the Court:

For the breach of all valid contracts, when proved to the satisfaction of a Jury, the law requires damages to be assessed ,• which are greater or loss, according to the injury sustained by the party. Put whenever a non-performance is established, although no real loss be proved, nominal damages, at least, ought to be given. The Court cannot, therefore, approve of the instructions given by the Judge to the Jury, that if they believed the Plaintiff had not really sustained any damage by the failure on the part of the Defendant to deliver the barrels on the day, they might find a verdict for the Defendant. On the contrary, the Jury were bound to find a verdict for the Plaintiff upon a breach of the contract being established. The rule for a new trial must be made absolute.