¶1 Without proof that the plaintiff had corn to ship, the law will not imply that he sustained damages beyond a nominal sum by the defendant’s breach of contract. There is no evidence from which any other damages can be inferred.'
¶2 When a right is given by law, and a remedy for its *344 violation, such violation imports damages; and when no penal damages are proved, the law will give nominal damages to the party.. Whithmer v. Cutte (1 Gal. C. C. R 478.) The plaintiff in this case could not have sustained any penal damage, unless he had the corn when he made the contract, or produced it afterward and had it ready to ship.
¶3 In actions which sound in damages, the jury seem to have a discretionary power of giving what damages they think proper; for though in contracts the very sum specified and agreed on is usually given, yet if there are any circumstances of hardship, fraud of deceit, though not sufficient to invalidate the contract, the jury may consider them and proportion and mitigate the damages accordingly. (Bac. Abridg. Tit. Damages, Letter D, 1.) Thus in an action brought on a promise of =£1000, if the plaintiff should find the defendant’s owl; the court declared, that though the promise was proved, the jury might mitigate the damages, (ib.) The plaintiff declared on a promise to pay for a horse, a barley corn, a nail, doubling every nail, and averred that there were thirty-two nails in every shoe, which doubling every nail, came to five hundred quarters of barley; which being tried before Hyde, he directed the jury to give the value of the horse in damages, and accordingly they gave =68, and it was held good. (Ib. Lev. 111.) In Thornburgh v. Whitaker, (3 Salk. 97,) the defendant, in consideration of half a crown paid him by the plaintiff, promised to give the plaintiff two grains of rye on' Monday following, and so on every Monday double by progressing, for one year. The defendant pleaded nonassumpsit, and upon motion to stay the trial it was denied; for per curiam, though it amounts to a great quantity, yet the jury will consider the folly of the defendant, and give reasonable damages. In • the foregoing cases, a rigid enforcement of the contract according .to the letter would have been oppressive and perhaps ruinous. There was a great disproportion between the actual consideration and the thing promised. The defendant might in each *345 case be presumed to have been overreached in the bargain, or to have made it inconsiderately. The mitigation allowed to be made by the jury rested on the same principles which • govern courts of equity in relieving against penalties and forfeitures. If the party obtains the actual damages he has suffered, he ought not to have the penalty, and the defendant, on making the plaintiff whole, should be relieved from it.
¶4 But while jurors have thus been permitted in certain cases to mitigate damages below the literal stipulation of the parties, they have never been permitted, when no actual damages have been shown or can be implied in a matter resting in contract, to guess at damages, beyond a nominal sum.
¶5 In the cases where the jury were permitted to reduce the damages to a reasonable sum, they had sufficient data by which they could form their judgment. Instead of giving ¿£1000 for finding the defendants owl, they could inquire into the time and expense spent in the search, and give that, as they gave the value of the horse in the other case. But in making their estimate in the opposite direction in this case, they had no data, beyond nominal damages. Why should they give, in an action on contract, more than that, when no actual damages were sustained. It was not a case in which the rules of law allow exemplary damages, nor where damages may be presumed, as in libel, slander, trespass and the like.
¶6 The jury had no right to presume that the plaintiff could have made a speculation by disposing of his right to any other person. The damages arising from such a source are too remote. They rest wholly in conjecture. The judgment should be affirmed.
¶7 Judgment reversed and new trial ordered