Bradley, Wheeler & Co. v. Borin

53 Kan. 628

• Court: Supreme Court of Kansas
• Decided: January 15, 1894
• Status: Published

Opinion

The opinion of the court was delivered by

HortoN, C. J.:

On account of the levy and attachment upon his property, the jury allowed the plaintiff below $200 as loss of profits on the sale of his goods, and $240.41 for depression of business. These separate amounts for damages are really for loss of profits. Nothing seems to have been allowed for injury to the credit of the plaintiff below. The evidence shows that Borin, a few weeks prior to the levy of the attachment, transferred his implement and livery business to Elmer Preston, one of his clerks. He gave notice through the newspapers of his county of the transfer, and commended his successor as entitled to a continuance of the liberal patronage theretofore accorded him. After the transfer, Preston held himself out to the public as the owner of the business.

’ Where an action is for any tortious act or omission, involving injury or loss of property, the law iufers an injury measured by its value, and the injured party may recover that standird under the general averment of damage; but if a plaintiff seeks to recover other damages, they are special and exceptional, and must be alleged and proved. In an action for damages on account of the wrongful levy of an attachment upon' personil property, as goods, wares, and merchandise, in order to recover for loss of profits, such loss must be specially alleged, that the defendant may be notified of the charge, and be prepared to meet it. (5 Am. & Eng. Encyc. of Law, 51 ) Under the pleadings and the instructions of the court, the $140.41 allowed in the special findings for profits and depression of business cannot be sustained. The note of set-off alleged in the answer is admitted. Therefore, upon the special findings, Bradley, Wheeler & Co. are entitled to a judgment of $440.41 more than returned in the general verdict. The judgment will be reversed, and the cause remanded, with directions to the district court to enter judgment in accordance with the views herein expressed.

All the Justices concurring.