Citation Numbers: 9 Ala. App. 100, 62 So. 369
Judges: Walker
Filed Date: 5/22/1913
Status: Precedential
Modified Date: 7/19/2022
It is contended in behalf of the appellant (defendant below) that the appellee could not have been entitled to recover anything more than nominal damages, as his complaint did not claim any special damages and the only damages which the evidence adduced tended to prove were special in their nature. One of the premises stated in the argument by
As to the sufficiency of allegations of special damages it has been said: “Inasmuch as the purpose of alleging such damages with particularity is to prevent surprise to the opposite party, it may be broadly stated that when the allegations are definite enough to fully apprise such party of the probable evidence which will be introduced by the pleader, and to enable him to prepare his defense accordingly, the allegations will he deemed sufficient.” — 13 Cyc. 179. The rule just stated being the one generally applied when a defendant duly raises a question as to the sufficiency of the allegations of the complaint to let in evidence of special damages, it seems plain enough that a defendant who raised no such question by motion to strike or objection to evidence (Western Union Telegraph Co. v. Garthright, 151 Ala. 413 [44 South. 212]) cannot be heard to say that a complaint containing such allegations as these above quoted gave him no notice at all that the plaintiff 'would seek to recover as damages the amount of expenses incurred by him in having his machinery and tools moved “in accordance with his agreement.” We are of opinion that the allegations of the complaint were such as to • apprise the defendant of the probability of the plaintiff’s offering evidence to prove the expenses incurred in having his machinery and tools moved, and that, as the question of the sufficiency of such allegations was not raised, such evidence could not properly have been treated as unsupported averments of the complaint, but was entitled to be considered by the jury as a basis for the assessment of damages. That evidence tended to prove that the plaintiff sustained substantial special damages as the result of the defendant’s refusal to permit him to carry out the contract. It follows that the court
Several of the charges requested by the defendant fall under the sanie condemnation; but any necessity for passing on each of them is dispensed with, as the bill of exceptions is to be understood as showing that all those charges were requested in bulk, and not separately, and as one of them was bad, the court cannot be put in error for refusing all of them. —Stowers Furniture Co. v. Brake, 158 Ala. 639, 48 South. 89; Yeats v. State, 142 Ala. 58, 38 South. 760.
What has been said disposes of the assignments of error which counsel for the appellant have undertaken, to sustain by argument.
Affirmed. •