Alford Johnson, as Trustee of the Martha Wood Trust v. Puritan Press, Inc. d/b/a Puritan Capital, et al.

2014 DNH 244

• Court: District Court, D. New Hampshire
• Decided: October 19, 2009
• Docket: 11-cv-459-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Alford Johnson, as Trustee of the Martha Wood Trust

v. Civil No. 11-cv-459-JD Opinion No. 2014 DNH 244 Puritan Press, Inc. d/b/a Puritan Capital, et al.

O R D E R

Alford Johnson, as the trustee of the Martha Wood Trust,

brought suit against The Capital Offset Company, Inc., which is

now Puritan Capital; its president, Jay Stewart; a consultant who

later worked for Puritan Capital, Stephen Stinehour; and Acme

Bookbinding Company, alleging claims arising from the printing

and binding of a photography book, Spiritual Passports. Acme

moves, in limine, to exclude evidence of damages claimed by

Johnson that were incurred before the date of Acme’s alleged

negligent misrepresentations. Johnson objects.

Discussion

Acme argues that any alleged negligent misrepresentations

could not have caused costs that were incurred before October 19,

2009, when the misrepresentations were allegedly made. For that

reason, Acme asks that evidence of costs incurred before October

19, 2009, be excluded as to Johnson’s claim against Acme. In

response, Johnson contends that costs for production of the book

that were incurred before October 19, 2009, are recoverable as consequential damages against Acme for negligent

misrepresentation about the efficacy of the binding method

without glue traps.

“The general rule is [] that the measure of damages

recoverable for misrepresentation, whether intentional or

negligent, is actual pecuniary loss.” Crowley v. Global Realty,

Inc., 124 N.H. 814, 817 (2984). Consequential damages are

included within the damages recoverable. Id. Consequential

damages are those amounts the plaintiff lost because of the defendant’s misrepresentation. Pure Barnyard, Inc. v. Organic

Labs., Inc., 2012 WL 4472012, at *9 (D.N.H. Sept. 26, 2012).

Johnson contends that Acme misrepresented that binding

Spiritual Passports without glue traps would work. Johnson

further contends that when Acme made that representation, Acme

knew that Johnson had incurred costs to develop and produce the

book before it arrived at Acme for binding. In reliance on

Acme’s representation, Johnson asserts, he agreed to have the

books bound without glue traps, instead of stopping production

and requiring Puritan Capital to print the pages with glue traps.

Binding the books without glue traps, Johnson argues, caused or

contributed to cause the failure of the books’ bindings. As a

result of the failed books, Johnson contends that the money he

spent to develop and produce the books was wasted and that the

loss was a consequence of Acme’s misrepresentation.

Johnson’s claim is that although the costs for development

and production of the books were incurred before Acme allegedly

2 misrepresented the efficacy of the binding method, the damage

occurred after the misrepresentation when the books were bound

without glue traps and the bindings failed. Johnson’s previous

expenditures for development and production, therefore, were

wasted. In other words, the loss occurred after Acme’s alleged

misrepresentation. Acme has not shown that the costs Johnson

incurred to develop and produce the book are not recoverable as

consequential damages.

Conclusion

For the foregoing reasons, the defendant’s motion in limine

to exclude damages for costs incurred before October 19, 2009,

(document no. 177) is denied.

SO ORDERED.

____________________________ Joseph A. DiClerico, Jr. United States District Judge

November 24, 2014

cc: Lawrence F. Boyle, Esq. Gary M. Burt, Esq. Anthony M. Campo, Esq. Thomas J. Pappas, Esq. Arnold Rosenblatt, Esq. Mark W. Shaughnessy, Esq. William N. Smart, Esq.