Prentiss v. Barnes

88 Mass. 410

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1863
• Status: Published

Opinion

Bigelow, C. J.

The practice act, Gen. Sts. c. 129, § 2, does not require that the plaintiff shall set out specifically or in detail the elements or grounds of the damages which he seeks to recover, but only “ the substantial facts necessary to constitute the cause of action.” Under the general allegation of damage he has a right to recover all the damages which are the natural or necessary consequences of the cause of action set forth in the declaration. In this respect, the rule at common law remains unchanged. It is only when special or peculiar damages are claimed that it is necessary to aver them specifically. As the evidence offered at the trial tended only to show the natural results which followed from the nuisance which the defendant by his contract had agreed to remove, it was rightly admitted and was proper for the consideration of the jury.

The evidence offered by the defendant was incompetent to show any ground for diminishing or abating the damages which the plaintiff was entitled to recover for a breach of the bond. It appears that the use of the building was a gratuity, for which no charge or claim was to be made by the defendant. It was on this understanding that the plaintiff made use of the premises. The defendant cannot convert that which was offered by him and received by the plaintiff as a favor or license without recompense into a debt or a claim, in the nature of a set-off against the damages which the plaintiff is entitled to recover. Such a defence is not only contrary to the original intent and agreement of the parties, but is a violation of good faith. Chit. Con. (7th Amer. ed.) 542, a. Guild v. Guild, 15 Pick. 129. Andrus v. Foster, 17 Verm. 556.

Exceptions overruled.