Austin & McCargar v. Langlois

• Decision Date: 20 November 1909
• Court: Vermont Supreme Court
• Parties: AUSTIN & McCARGAR v. LANGLOIS.

74 A. 489

83 Vt. 104

AUSTIN & McCARGAR

v. LANGLOIS.

Supreme Court of Vermont. Grand Isle.

Nov. 20, 1909.

Exceptions from Grand Isle County Court, Zed S. Stanton, Judge.

Action by Austin & McCargar against Delphise Langlois. From a judgment for plaintiff, defendant brings exceptions. Affirmed in part, and reversed in part.

The body of the letter dated January 3, 1907, is as follows: "Dear Sir: In the month of September, 1906, I bargained with, and supposed I had sold to, you and Mr. Austin my hay that I raised on my farm, 'The Powers Place, in Alburg, Vt., in the year 1906 with these conditions: That I, D. Langlois, was to furnish hay in the barn loose; soon after you had it pressed I was to deliver it on board a boat at the Isle La Motte bridge in the season of 1906 for the sum of ten dollars ($10.00) per ton."

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

C. G. Austin & Sons and V. A. Bullard, for plaintiffs.

Furman & Webster, for defendant.

WATSON, J. By the contract declared upon, the defendant sold his hay to the plaintiffs on September 18, 1906, for the price of $10 per ton, which hay was to be pressed by the defendant after October 1, 1906, at the rate of $1.50 per ton, and to be delivered by the defendant to the plaintiffs immediately thereafter, as they might direct, on board the cars at Alburg, or on board a boat at Isle La Motte, and to be paid for on such delivery. On the 23d day of September the plaintiff paid to the defendant the sum of $50, and on the 12th day of October $105.25, to be applied on the purchase price of the hay and the price of pressing it. It is further alleged that the defendant has retained said sums of money, and did not, nor would, within the time aforesaid, or at any time afterwards, though often specially requested so to do, press and deliver said hay, or any part thereof, for the plaintiffs at the place named, but wholly neglected and refused so to do. The second count alleges a similar request made by the plaintiffs on or about January 4, 1907. General damages only are alleged.

The plaintiffs claim the right to recover special damages under the averment that they "have lost and been deprived of divers great gains and profits, which might and otherwise would have arisen and accrued to them from the delivery of the said hay to the said plaintiffs, as aforesaid, to wit, the sum of," etc. But this averment is insuecient, in the absence of any allegation shocking for what purpose the hay was purchases by the plaintiffs, and in what way the less of profits was the natural consequence of the act complained of. To permit evidence at the trial of such damages arising from the breach of contract, it is necessary to state them specially and circumstantially order to apprise the defendant of the face intended to be proved. 1 Chit. PI. *338.

Neither the paper marked Exhibit A nor a copy thereof is before us as a part of the exceptions. Hence we cannot say that its admission in evidence was error. Royce v. Capenter, 80 Vt. 37, 66 Atl. 888.

The letter of January 3, 1907, written at the dictation of the defendant and sent to the plaintiff McCargar,...