Joseph La Page, Appellant, v. Elbert O. Forbes, Respondent

Joseph La Page, Appellant, v. Elbert O. Forbes, Respondent. Third Department, June 27, 1912. Contract — action for breach — complaint — special damages — evidence. A complaint which states that plaintiff employed the defendant to draw milk to a factory for the season at a compensation of $225 and that defendant broke the contract, and “ That relying upon said agreement, this plaintiff hired help and made all necessary preparations to carry on said work, and has been, by reason thereof, obliged to pay, lay out and expend for such help, in board and moneys, the sum of Two hundred twenty-five dollars,” alleges special damages, and it is error to exclude evidence offered to show that the plaintiff engaged his sons to draw the milk and paid them the entire $225. Appeal by the plaintiff, Joseph La Page, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Franklin on the 23d day of November, 1910, awarding the plaintiff damages upon the verdict of a jury, and the defendant costs and disbursements of the action, and also from an order entered in said clerk’s office on the 21st day of November, 1910, denying the plaintiff’s motion for a new trial made upon the minutes. Moore & Berry [B. W. Berry of counsel], for the appellant. George J. Moore, for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: The jury has found that the defendant employed the plaintiff to draw milk to the factory for the season at a compensation of $225, and that the defendant broke the contract, and it has awarded the plaintiff $25 damages therefor. The complaint alleged the contract and its breach, and “That relying upon said agreement, this .plaintiff hired help and made all necessary preparations to carry on said work, and has been, by reason thereof, obliged to pay, lay out and expend for such help, in board and moneys, the sum of Two hundred twenty-five dollars,” and it asks judgment for that sum, alleging no other damage. The plaintiff’s evidence showed that the defendant sought to. employ him to draw the milk and he replied that if he could, make arrangements with his sons to draw it he would take the contract. He was to go home, see the sons and notify the defendant whether he would -undertake the job. He saw the sons and returned and told the defendant he would draw the milk as agreed: He then offered to prove the arrangement that he made with the sons and what he was to pay them, which was excluded and the plaintiff excepted. The- court charged the jury that no special damages were alleged and that it could only award the plaintiff the damages shown. He then asked the court to charge that the evidence is undisputed that the plaintiff did get his sons and did make an arrangement with them and did himself carry it out, so that he would be damaged in the full amount. The court: “I cannot charge that he would be damaged in the full amount for there is no proof in the case at all as to what expense he went to with anything that he had done. No special damages are claimed. The fact is simply there that if the contract was made, he was not allowed to carry it out. Whatever loss he suffered by reason of that, not to exceed $225, they may allow.” If the plaintiff, as alleged, agreed to pay his sons $225 for doing this work, being the entire amount to be paid by the defendant, and if he was compelled to pay that sum, there was a special damage which, under the complaint, he was entitled to recover. I think the court was in error in saying that no special damage was alleged ; it is evident that the rulings of the court prevented the plaintiff from further efforts to prove the special damage claimed. No other damage was alleged or proved. The judgment should therefore be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide the event.