¶1We think the defendant’s motion in it to be denied.
¶2In regard to his right to set-off his damages, occasioned by the plaintiff’s violation of his part of the original contract, against the note, the judge’s charge seems to have been in substantial conformity to the defendant’s claim, so that he has no reason to complain of it.
¶3But it is said that nominal damages, at least, are due and recoverable for every breach of contract, and hence that the instructions given to the jury, that their verdict should be for the full amount of the note, if they found the evidence so un.certain and indefinite hi its nature that the damages could not be ascertained or estimated by them, was erroneous. It is true that, as a general rule, nominal damages at least are recoverable for every breach of contract, but it is not true that a new trial must of course be granted to enable a party to recover them, or ought always to be granted for an error of the court. When it is apparent that substantial justice has been done by the verdict, or the losing party has suffered no injury from the error of the court, or the question raised in this court was not made in the court below, a new trial should not be granted. So also, as a general rule, a new trial ought not to be granted merely to enable a party to recover nominal damages; and especially since, by the letter of our statute, a plaintiff who recovers nominal damages only, is, and by the spirit and equity of that statute a defendant might be, in a case like this, held liable not only to lose his own costs, but to pay costs also to the adverse party. Motions for new trials are addressed to the sound judicial discretion of the court, and ought never to be granted except to subserve the purposes of substantial justice between the parties. And besides, the controversy between these parties in the court below related, not to nominal, but to substantial damages. The defendant *124attempted to show that he had sustained damages to the full amount of the note in suit, but failed to lay before the jury any evacuee upon which it was possible, by any rule, to find or estiri; the damages actually sustained by him. If, by the plaj1' s breach of contract the defendant had sustained damagl .oí which he could produce no satisfactory evidence, he was, indeed unfortunate, but we believe no court has gone further than to allow the jury to make a set-off of such damages as are proved. To allow them to conjecture, would be as dangerous as it would be unprecedented.
¶4It is not our intention either to sanction or deny the general doctrine adopted by the judge upon the trial, in regard to the defendant’s right to recoup and set-off his damages against the plaintiff’s claim in such a Gase as this. We prefer to place our decision upon the grounds already indicated, to wit, the defendant’s failure to lay before the jury such evidence as would have enabled them to ascertain or estimate his real damages, and that a new trial will not in general be granted merely to enable a party to recover nominal damages at the hands of another jury.
¶5A new trial ought not to be granted.
¶6In this opinion the other judges concurred; except Hinman, J., who, having tried the case in the court below, did not sit.
¶7New trial not advised.