Please help me solve the questions on the bottom.

George Hawkins v. Edward R. B. McGee

Supreme Court of New Hampshire (June 4, 1929)

84 N.H. 114; 146 A. 641

Assumpsit, against a surgeon for breach of an alleged warranty of the success of an operation. Trial by jury and verdict for the plaintiff. The court found that the damages were excessive, and made an order that the verdict be set aside unless the plaintiff elected to remit all in excess of $500. The plaintiff having refused to remit, the verdict was set aside "as excessive and against the weight of the evidence," and the plaintiff excepted.

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The operation in question consisted in the removal of a considerable quantity of scar tissue from the palm of the plaintiff's right hand and the grafting of skin taken from the plaintiff's chest in place thereof. The scar tissue was the result of a severe burn caused by contact with an electric wire, which the plaintiff received about nine years before the time of the transactions here involved.

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The only substantial basis for the plaintiff's claim is the testimony that the defendant also said before the operation was decided upon, "I will guarantee to make the hand a hundred per cent perfect hand " or "a hundred per cent good hand." The plaintiff was present when these words were alleged to have been spoken, and if they are to be taken at their face value, it seems obvious that proof of their utterance would establish the giving of a warranty in accordance with his contention.

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The substance of the charge to the jury on the question of damages appears in the following quotation: "If you find the plaintiff entitled to anything, he is entitled to recover for what pain and suffering he has been made to endure and what injury he has sustained over and above the injury that he had before." To this instruction the defendant seasonably excepted. By it, the jury was permitted to consider two elements of damage, (1) pain and suffering due to the operation, and (2) positive ill effects of the operation upon the plaintiff's hand. Authority for any specific rule of damages in cases of this kind seems to be lacking, but when tested by general principle and by analogy, it appears that the foregoing instruction was erroneous.

"By "damages' as that term is used in the law of contracts, is intended compensation for a breach, measured in the terms of the contract." Davis v. Company, 77 N.H. 403, 404. The purpose of the law is to "put the plaintiff in as good a position as he would have been in had the defendant kept his contract." 3 Williston, Cont., s. 1338; Hardie etc. Co. v. Company, 150 N.C. 150. The measure of recovery "is based upon what the defendant should have given the plaintiff, not what the plaintiff has given the defendant or otherwise expended. " 3 Williston, Cont., s. 1341. "The only losses that can be said fairly to come within the terms of a contract are such as the parties must have had in mind when the contract was made, or such as they either knew or ought to have known would probably result from a failure to comply with its terms." Davis v. Company, 77 N.H. 403, 404; Hurd v. Dunsmore, 63 N.H. 171.

The present case is closely analogous to one in which a machine is built for a certain purpose and warranted to do certain work. In such cases, the usual rule of damages for breach of warranty in the sale of chattels is applied and it is held that the measure of damages is the difference between the value of the machine if it had corresponded with the warranty and its actual value, together with such incidental losses as the parties knew or ought to have known would probably result from a failure to comply with its terms. Hooper v. Story, 155 N.Y. 171, 175. The rule thus applied is well settled in this state. "As a general rule, the measure of the vendee's damages is the difference between the value of the goods as they would have been if the warranty as to quality had been true, and the actual value at the time of the sale, including gains prevented and losses sustained, and such other damages as could be reasonably anticipated by the parties as likely to be caused by the vendor's failure to keep his agreement, and could not by reasonable care on the part of the vendee have been avoided." Union Bank v. Blanchard, 65 N.H. 21, 23; Hurd v. Dunsmore, supra; Noyes v. Blodgett, 58 N.H. 502; P. L., c. 166,

s. 69, vii.

We, therefore, conclude that the true measure of the plaintiff's damage in the present case is the difference between the value to him of a perfect hand or a good hand, such as the jury found the defendant promised him, and the value of his hand in its present condition, including any incidental consequences fairly within the contemplation of the parties when they made their contract. 1 Sutherland, Damages, (4th ed.), s. 92. Damages not thus limited, although naturally resulting, are not to be given.

The extent of the plaintiff's suffering does not measure this difference in value. [The pain] represented a part of the price which he was willing to pay for a good hand, but it furnished no test of the value of a good hand or the difference between the value of the hand which the defendant promised and the one which resulted from the operation. Question:

1. Was the contract a promise from Dr. McGee to make Hawkin's hand perfect?

2. What was the correct measure of expectation damages?

3. What should the basis be for determining how Hawkin's is compensated in this case?

4. Is this a tort case or a contract case? What is the basis for damages?