Noah Haynes Swayne

“ Special, as contradistinguished from general damage, is that which is the natural, but not the necessary, consequence of the act complained of. In this connection, in the case before us, two questions are presented for our consideration: Was the sickness of the defendant, alleged to have been induced by his exposure on the Moses Taylor, special damage, within the rule of pleading on that subject? and if so, was the right of the defendant to object to a recovery upon that ground waived by his conduct at the trial? ”

“ It is objected that the plaintiff was allowed to recover for a special damage not alleged in the complaint. As a general proposition, that cannot be done. Special damage, whether resulting from tort or breach of contract, must be particularly averred, in order that the defendant may be notified of the charge, and come prepared to meet it. ”

“ Lawrence & Westcott, 4 Denio, 421; Lawrence v. Barker, 5 Wendell, 305.↑ Newberry v. Lee, 3 Hill, 523.↑ 6 Martin, N. S. 86; see also Goslin v. Corry, 7 Manning & Granger, 347; and Doe v. Benjamin, 9 Adolphus & Ellis, 664. ”