Willey v. Paul

49 N.H. 397

• Court: Supreme Court of New Hampshire
• Decided: June 15, 1870
• Status: Published

Opinion

Smith, J.

Flanders v. Grand Trunk Railway Company, (Coos July term, 1868,) was an action on the case against common carriers for failurejo deliver freight within a reasonable time. It was there held that the plaintiff could not recover damages for the loss occasioned by the failure to fulfill a contract with a third person for the sale of the freight, if such damages were not specially averred in the declaration : see also, 2 Greenl. Ev. sec. 254; 1Chitty Pl. 395-397.

The same principle should be applied iu actions of trespass, and is decisive of the present case. It would be unreasonable to hold that notice of the claim for these special dameges was given by the use of such a vague and indefinite expression as “alia enormia.”

Ward v. Smith, 11 Price 19, cited by plaintiff, is not in point; neither in that case, or in Roberts v. Graham, 6 Wallace 578, was the plaintiff allowed to recover under a general averment, damages on account of any contract between himself and a third person.

Plaintiff should remit the special damages.