Adams v. Robinson , 65 Ala. 586 ( 1880 )

SOMEBVILLE, J.

— The complaint in this case alleges a valid contract between the plaintiff and the defendant, the violation by the defendant of a duty growing out of, and imposed on him by it, and a loss consequent thereon. Its averments were, therefore, sufficient, certainly to entitle the plaintiff to the recoverv of nominal charges. — Code (1876), | 2978. If the defendant rented out the plaintiff’s storehouse, contrary to her instructions, a right of action arose immediately, in favor of the latter, against the former. The principle is well settled, that when one contracts to do an act for another, and either does it unskillfully, or fails to do it at all, an action in the case will lie against him, to recover such loss or damage as may result from his negligence, carelessness, or want of skill, in the discharge of the duties imposed on him by the contract. — Myers v. Gilbert, 18 Ala. 467.

Every wrong imports a damage, and when none other is proved, and the evidence shows a clear breach of duty, nominal damages are always recoverable.— Bagby v. Harris, 9 Ala. 178; Sedgwick on Dam., 6th ed., 461 [337].

Where, furthermore, an agent violates his positive instructions given him by a principal, this would constitute gross negligence, which would render him liable for such loss or damage as may be occasioned by his misconduct; and, on a principle well recognized in many cases of tort, every doubtful circumstance would be construed unfavorably to the rights and interests of the agent thus perpetrating the wrong. Story on Agency, § 333 ; Dodge v. Tileston, 12 Pick. 333-4.

It is always competent for a witness to state that he had a conversation with a third person, on a certain subject germane to the issue in dispute, and at a time specified, as a reason for his accurate recollection of a fact to which he has testified. The rules of evidence are those of common sense and human experience ; and both of these teach us, that the retentiveness of a witness’ memory, as to a particular fact or incident, is greatly improved where, after seeing or hearing of it, he subsequently converses about it. The fact of plaintiff’s conversation with Moses was relevant evidence, therefore ; but the narration of the details of it were properly excluded by the Circuit Court.

The demurrer to the complaint was also properly overruled, and the other rulings of the court, when tested by the above principles of law, were free from error.

The judgment is affirmed.