C. J. L. Myer & Sons Co. v. Davies

McAllister, J.

It is well settled law, that in order to recover damages which are not the necessary result of the breach of a contract or a tort, they must be specially set out in the declaration. Olmstead v. Burke, 25 Ill. 86; City of Chicago v. O’Brennan, 65 Ill. 160; Bristol Manufacturing Co. v. Gridley, 28 Conn. 201; Warner v. Bacon, 8 Gray, 397; Hunter v. Stewart, 47 Maine, 417. The elementary rule is this: “But where the damages, though the natural consequences of the act complained of, are not the necessary result of it, they are termed special damages; which the law does not imply, and therefore in order to prevent a surprise upon the defendant, they must be particularly specified in the declaration, or the plaintiff will not be permitted to give evidence of them on the trial.” 2 Greenlf. on Ev., § 254; Teagarden v. Hetfield, 11 Ind. 522.

The delay of twenty-four men for three weeks, and the payment by the plaintiff to those men during that delay, can not be regarded as a necessary result of the defendant’s breach of the contract, if a natural one; so that the damage was special. And if such damage was recoverable at all, it was indispensable that it should have been particularly specified in the declaration. But it was not, and the court not only admitted evidence of such special damages, hut in the instructions given to the jury, in effect directed them if they found the contract was made, a breach of it by the defendant, and that plaintiff was unable to purchase the same kind of materials elsewhere, then the jury might allow the plaintiff such damages as they found from the evidence he had sustained. It will be observed, that neither of the instructions contained any hypothesis, as to whether any of the consequential special damages sought to be shown by themlaintifl’s evidence, were to be considered as within the contemplation of the parties, at the time of the contract. In that particular also, the instructions were defective and misleading. Olmstead v. Burke, supra; Goodkind v. Rogan, 8 Bradwell, 413.

We are of opinion that the court erred in the admission of testimony in giving instructions, and overruling defendant’s motion for a new trial, for which errors the judgment must be reversed and the cause remanded.

Judgment reversed.