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Wade v. Leroy et al.

would lessen, if not destroy, his ability to maintain and support his family by his own exertions.

It required no averment in the declaration to apprise the defendant that such consequences must result from the injuries specified. They are so necessary and natural that no one could mistake them. Every common understanding must arrive at the same conclusion.

FIFTH.-The evidence offered tended to prove necessary and natural injurious consequences arising from the injury to the plaintiff, within the settled rules of law.

The courts have furnished precedents that clearly sustain the offer of the plaintiff below, and so do the elementary writers. Mayne on Damages, the latest and best English writer, says:

"Special damage must always be expressly averred and proved, when it is so much the gist of the action, that without it no suit could be maintained."-P. 314.

"It is not, however, necessary to state or establish particular instances of damage."-P. 315.

"In all other cases, whether the action be on contract, or in tort, if the facts involve a legal injury, no actual damage need be stated."-P. 15.

"In contracts, too, there are certain damages which the law will presume; as, for instance, in an action for not delivering goods; that the plaintiff had to buy others at a loss. '* * * The extent of the loss must be proved; but no notice need be given of the species of loss which will be set up. But it is different where the injury complained of is merely secondary and consequential damage."-P. 316.

"In an action for slandering a man in his trade, when the declaration alleges that he thereby lost his trade, he may show a general damage to his trade, though he cannot give evidence of particular instances."-P. 317.

"So if one, not a carpenter, sell timber which the purchaser uses to prop up his building, and, by reason of the timber being defective, the building fall and be destroyed, if the seller acted in good faith, and was ignorant of the defect, he will only be liable for the difference in price between good timber and that sold. If, however, the seller was a carpenter, who sold the timber for the express purpose of propping up the house, then he shall be liable for all the damage done to the building.' Sedgwick on Damages, 65.

He quotes from Chitty, at p. 575, where the rule is laid down as in the decisions I have copied.

These views are sustained by various decisions.-Dewint v. Wiltse, 9 Wen., 325.

Wade v. Leroy et al.

Defendant hired plaintiff's ferry, and covenanted to maintain and keep the same in good order; but, instead of doing so, he diverted travellers from the usual landing to another landing, owned by himself, by means of which a tavern stand, belonging to the plaintiff, situated at his landing, was so reduced in business as to become tenantless. It was held that the plaintiff could recover. The court determined that the damages proved were a legitimate claim, and the legal and natural consequence of the breach of the covenant.

Dickinson v. Boyle, 17 Pick., 78, 79:

"Where the act complained of is admitted to have been done with force, and to constitute a proper ground for an action of trespass vi et armis, all the damage to the plaintiff, of which such injurious act was the efficient cause, and for which the plaintiff is entitled to recover in any form, may be recovered in such action, although in point of time such damage did not occur until some time after the act done.

"Where special or peculiar damages are claimed, such as are not the usual or natural consequences of the act done, it is proper to set them forth specially in the declaration, by way of aggravation, that the defendant may have due notice of the claim." Squier v. Gould, 14 Wen., 159, 160:

“Where the damages actually sustained do not necessarily arise from the act complained of, and consequently are not implied by law, in order to prevent surprise to the defendant, the plaintiff must state in his declaration the particular damage which he has sustained, or he will not be permitted to give evidence of it upon the trial."

Vanderslice v. Newton, 4 Comst., 130, 132:

Towing a boat from New York to Albany, or as far as it could but for the ice.

"With respect to the damages, the general rule in questions of this nature is, that the plaintiff is entitled to recover, as a recompense for his injury, all the damages which are the natural and proximate consequence of the act complained of, (2 Greenl. Ev., § 256.) Those which necessarily result from the injury are termed general damages, and may be shown under the general allegation of damages at the end of the declaration. But such damages as are the natural, although not the necessary, result of the injury, are termed special damages, and must be stated in the declaration, to prevent surprise upon the defendant; and being so stated, may be recovered."

Ward v. Smith, 11 Price, Exch. R., 19.-(Eng. Exc. R., 19:) Suit in assumpsit for not performing an agreement to let the plaintiff into the possession of certain apartments and furniture.

Wade v. Leroy et al.

The plaintiff proved that his wife was a milliner, and lost business in the best part of the season by not being permitted to take possession.

"A plaintiff in such an action may give evidence by particular loss sustained by breach of such an agreement, if he have stated loss generally in his declaration. Therefore, evidence of loss of business by plaintiff's wife in her trade of milliner held admissible, in such a case, as evidence of general damage, where no special damage on that ground was laid in the declaration, nor any customers named, nor any averment of her business introduced."

Baron Graham expressed himself fully upon this point.
Hutchinson v. Granger, 13 Vt., 386:

"General damage, or such as is the common or ordinary consequence of the act complained of, need not be specially alleged in the declaration; and if some portion of the plaintiff's general damages be alleged, this will not preclude him from giving evidence of other general damage.

"In actions for flowing land, the injury, i. e., the flowing the land, and the means by which it was done, must be substantially alleged; but any general damage, such as rendering the land wet and unproductive, and more difficult to cultivate, and destroying crops, either in the process of growth or harvesting, need not be alleged."

Lincoln v. Saratoga and Schenectady Railroad Company, 23 Wen., 425:

Suit by passenger for injury to his person, when travelling upon defendant's road. Nelson, J.

Opinions as to the value of plaintiff's time had been given in evidence, and new trial granted on that account.

"Even with the jury, the damage beyond actual expenses at best rise but little above conjecture; it is so in every case where they are called upon to estimate the loss of the plaintiff's time. How serviceable it might have been to him, depends upon a calculation of the changes and vicissitudes of life, the casualties and fluctuations of business, utterly beyond the reach of human foresight. The most they can do is to bring to the discharge of their duties a careful and diligent consideration of the particular case, a knowledge and experience of the general condition and business affairs of mankind, to which all are more or less subject, a sound and enlightened judgment, and honest desire to arrive at truth and justice between the parties. No more can be expected; no less, justified. The result will usually be an approximation to reasonable indemnity, as near as the interpretation of human tribunals will admit.

Wade v. Leroy et al.

"I am also of opinion that some of the questions put in respect to the effect of the injury to the limb were pushed into consequences and conjectures too remote for the subject of judicial investigation. The present and probable future condition of it were proper matters for inquiry; but the consequences of a hypothetical second fracture were obviously beyond the range of it, and calculated to draw the mind of the jury into fanciful conjectures."

Driggs v. Dwight, 17 Wen., 71:

"Where a party agrees to demise certain premises to another, who breaks up his establishment, and proceeds with his family and furniture to the place where the premises are situate, and the landlord refuses to give possession, the tenant is entitled to recover the damages sustained by him by such removal of his family and furniture, although special damage is not alleged in the declaration."

The English cases sustaining the principles contended for are referred to in Mayne on Damages, at the pages referred to in that work.

Mr. Silliman and Mr. O'Connor made the following points:

First Point.-Assuming, for the sake of the argument, that a person suffering a personal injury which disqualifies him from prosecuting a particular business in which he is engaged, may recover in an action ex contractu or ex delicto brought against the party from whose willfulness or negligence such injury resulted, the value of the employment thus lost, or that, in some more loose or general way, the nature of such business may be taken into consideration by the jury in estimating damages, then it is submitted that the established rules of pleading and evidence require, as an indispensable condition to the admission of proof, that the business and the fact of its loss be particularly set forth in the declaration.

I. Under a general allegation of damage, the plaintiff can only recover general damages. General damages are such as necessarily result from the injury alleged under the circumstances set forth. These the law presumes, and they need not be alieged with any particularity, nor even proved.

II. Special damages are such as result from some cause not notified to the defendant by the very description of the injury complained of, as necessarily resulting from it. Any fact which rendered it more hurtful to the plaintiff than it would have been to any other person, under the same circumstances set forth, is a special damage; and, consequently, it cannot be given in evidence, unless specially set forth in the declaration. The object of this rule is to prevent surprise. (1 Chitty's Plead

Wade v. Leroy et al.

ings, pp. 395, 396, 397, 398; 2 Greenleaf's Ev., §§ 254, 278, and notes; Sedgwick on Damages, 2d edition, p. 575.)

III. This rule is of universal application. No case has been found, nor any dictum of an elementary writer, recognising any distinction, in this respect, between actions ex delicto and actions ex contractu, or between the different forms of action, or between the various causes of action. (3 Bouvier's Institutes, § 2872; J. S. Saunders's Pleadings and Ev., 136, 800; ib., 83, 105, 151, 906, 344; ib., 865, 520, 653, 660; Pettit v. Addington, Peake's N. P. Cases, 63; Lowden v. Goodrich, ib., 46; Westwood v. Cowne, 1 Starkie's R., 172; Bodley v. Reynolds, 8 Ad. and Ellis, 780; Boyden v. Burke, 14 IIow., 575; Kendall v. Stokes, 3 How., 87, 90, 102; Strang . Whitehead, 12 Wend., 65; Pritchett v. Bovey, 1 Cr. and Mecson, 778; Jones v. Lewis, 9 Dowlings Pr. Cases, 150; Richardson v. Chasen, 10 Ad. and Ellis, N. S., 756, 759; Patten v. Libby, 32 Maine, 378; Vanderslice v. Newton, 4 Comstock R,, 132, 133; Dumont v. Smith, 4 Denio, 322; Alston v. Huggins, 3 Brevard, 188; Dickinson v. Boyle, 17 Pick., 79; Furlong v. Polleys, 30 Maine, 493; Lewis v. Calder, 8 Burr. Penn. Rep., 479; Bogart v. Burkhalter, 2 Barbours S. C. R., 525; Squier v. Gould, 14 Wend., 160.)

IV. In slander and libel, when the action lies only by reason that the defamatory matter complained of touched the plaintiff in some particular office, employment, or relation, the averment of that office, &c., is not called by pleaders an averment of special damages. It is a part of the cause of action; but being notified to the defendant, it may be proved, and, of course, may have its just weight with the jury. Here there is no danger of surprise. (Ingram v. Lawson, 6 Bingh. N. C., 212; ib., 8 Scott, 775; 9 Carr and Payne, 826; 1 Selden's N. Y. Rep., 20; Donnell v. Jones, 17 Alabama, 692 to 695; S. C., 13 Alab. R., 509, 510; Delegall v. Highley, 8 Carr and Payne, 444; Rollin v. Stewart, 25 Eng. L. and Eq. R., 345.)

V. In cases of defamation, where the matter is not actionable generally, nor actionable so as to give a right to general damage, by reason of its touching the plaintiff in his particular office, employment, &c., the plaintiff is obliged to aver in his declaration the special damage on which he relies, and to prove it at the trial. All the adjudications arising under this head in our law, whether on demurrer, or in arrest of judgment, or for variance at the trial, are so many illustrations of the rule contended for in this point. (Malachi v. Soper, 3 Bingh. N. C., 371.)

Second Point.-As the defendants, on being charged with the injury alleged in the declaration, could not learn, from

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