delivered the opinion of the Court. The question submitted to the Court in the present case is, whether upon the facts proved, the plaintiffs are entitled to recover damages, and if so, upon what principles. The action is case, charging the defendant with carelessly and negligently setting a fire on his own lands, by which a quantity of wood, on adjoining lands, was destroyed. The plaintiffs had entered into an executory contract with the owners of a quantity of growing wood, to cut it and carry it away, at fixed prices per cord, in pursuance of which, a large quantity had been cut and corded. By the agreement the plaintiffs were to have one half of the refuse wood, as a compensation for the labor of cutting, and a quantity of such refuse wood was consumed by the same fire.
The Court are of opinion, that in this action it is immaterial whether the proof establishes gross negligence, or only want of ordinary care, on the part of the defendant. In either case the plaintiffs would be entitled to recover in damages the actual amount of loss sustained, and no more, in the form of vindictive damages, or otherwise.
It appears from the facts reported, that the corded wood, pine and oak, had not been measured, in the mode agreed on by the parties, so that the property in it had not vested in the vendees. But in the case of the refuse wood, no act remained to be done; by the agreement, they were in possession by the act of cutting and no further delivery was necessary ; one half of this wood therefore became the property of the plaintiffs, as soon as severed, and of this undivided half they were the *381owners at the time of its destruction by the fire. Its value is a proper subject of damage.
In regard to the other point, the Court are of opinion, that the measure of damages, is not the value of the labor expended upon the wood by the plaintiffs, for that may be more or less than the plaintiffs’ interest in it. But the true measure of the damage, is the value of the wood to them, for market or otherwise, deducting the sum which the plaintiffs were to have paid to the owners for the wood.
It was contended that the plaintiffs could recover no damages for this wood, because the value of the labor had gone into the wood, which was still the property of the original owners, and that the defendant would be liable to them for this increased value. But we think this position cannot be maintained. This labor was expended on the wood in pursuance of an express contract; and the owners of the wood were under no legal obligation to pay the plaintiffs for their labor. The measure of damages for the owners of the wood, would be the value of the wood, independent of the labor thus expended upon it by the plaintiffs ; and prima facie the price which they were by contract to receive for it, would be deemed the measure of that value. The plaintiffs therefore had an interest in the wood, which was, to take it at the prices agreed upon, $3-50 and $ 4-50, respectively for the two kinds of wood, an interest which they must have realized, had the wood not been destroyed by the fire. Whether they had a lien or not, they had a direct interest to this extent, and to this extent they are entitled to recover damages.
In regard to profits which might have been realized from cutting the remainder of the standing wood, in pursuance of the contract, we think it is an interest too remote and contingent, to be the subject of damages in this action.
And as to any extra costs of this suit, beyond the costs to be taxed, the Court are of opinion, that no claim of that kind, by way of damages, is admissible. Formerly a notion prevailed, that 'n trespass and other actions sounding in damages, a jury, being limited by no definite rule, might include in their estimate of damages, the counsel fees, and other costs of litigation, not included in the taxable costs, and this is countenanced *382by an expression in the opinion of Mr. Chief Justice Sewall, in Cole v. Fisher, 11 Mass. R. 139. In that case, it was not the costs of the same suit of which he spoke, but, in considering whether the plaintiff had adopted the right form of action, case or trespass, for a tort, it was suggested to be probably immaterial, because if the plaintiff were to fail in that suit and bring another, the jury might take into consideration the costs of the unsuccessful suit, in estimating the damages in the succeeding one.
But this point has been since considered, (Rice v. Austin, 17 Mass. R. 197 ; Leffingwell v. Elliott, 10 Pick. 204,) and it is now well settled, that even in an action of trespass, or other action sounding in damages, the counsel fees, and other expenses of prosecuting the suit, not included in the taxed costs, cannot be taken into consideration in assessing damages ; and if such costs were included by a jury, it would be irregular and erroneous. We think therefore that the plaintiffs are entitled to recover the value of one half of the refuse wood, according to the quantity proved to have been destroyed, and secondly, the value of the cord wood, according to the quantity destroyed, deducting the price at the rate of $ 3-50 for the pine and $4'50 for the oak; and that the other claims of the plaintiff for damages, must be disallowed by the assessors.