101 So. 763 | Ala. | 1924
A plea averring that the allegations of the complaint are untrue, even in an action on a written contract, is a plea of the general issue merely, does not put in issue the execution of the instrument sued on, and need not be verified by oath. L. N. R. R. Co. v. Trammell,
The general rule defining the liability of a covenantor in cases like this was declared in Clark v. Zeigler,
The covenant against incumbrances, as often declared, is a covenant in præsenti, and *62
is broken as soon as made, if there is an outstanding paramount title, or any existing charge, burden, or interest diminishing the value or enjoyment of the land. Sayre v. Sheffield, etc., Co.,
But plaintiff invokes, and seeks to apply to this case, the principle applicable to breaches of contract in general, viz. that when there are special circumstances, known to the parties, by reason of which a breach of the contract by one will probably deprive the other party of some special benefit or advantage contemplated at the time of its making, then such a loss or deprivation, though collateral in character, and not ordinarily a subject for compensation, may be included in the damages recoverable. Bixby-Theirson Lumber Co. v. Evans,
Hence, it has been generally, and we think correctly, held that "the gains or profits of collateral enterprises or subcontracts are, as a rule, too speculative and contingent to afford an element of recovery in the case of a breach of the primary contract." 17 Corp. Jur. 793 (section 115), and the numerous cases cited under note 82. Our own cases sustain this view. Reed Lumber Co. v. Lewis,
We think that this principle is applicable here, and that there can be no recovery of damages based on the mere delay in cutting imposed by the incumbrance complained of.
"The general rule is not affected by the fact that the land was bought for a particular purpose, which was known to the vendor, and that the failure of title to a portion of it renders it useless for such purpose." 15 Corp. Jur. 1322 (section 224) — citing Hoot v. Spade,
The case of Fraser v. Bentel,
It is to be observed, with respect to that portion of count 2 which was stricken on defendant's motion, that, while it alleges that the land was heavily timbered, and that defendant was informed that plaintiff was buying the land for the immediate manufacture of the timber into lumber, or its immediate sale, and that plaintiff was by this incumbrance deprived of the right, and was unable to do so, until the expiration of the paramount outstanding right, yet there is no allegation of resulting damage, and no claim for damages therefor.
Special damage must be specifically averred, and averments which show merely an enforced delay in contemplated action, with no suggestion of resulting damage, will not authorize either proof or recovery of special damages. B. R., L. P. Co. v. Colbert,
In this aspect of the matter, the stricken allegation must be regarded as surplusage merely, whose presence in the complaint was of no value, and whose elimination was not prejudicial.
The trial judge, under the principles *63 above recited, correctly instructed the jury that only nominal damages could be recovered for the breach of covenant shown; and properly refused to allow plaintiff to show by evidence what was the difference in the value of the land with and without the incumbrance.
Finding no error, the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.