32 Vt. 9 | Vt. | 1859
If the plaintiff’s declaration is defective,, as the defendant insists, we think the defendant is not entitled to have the judgment arrested after a verdict upon- it in favor of the plaintiff. The fraud, or deceit, or false warranty, set forth in the plaintiff’s declaration, if proved, as it must be in order to entitle the plaintiff to a verdict at all, would entitle the plaintiff at least to recover for the diminished value of the sheep purchased of
The defendant concedes that if the plaintiff established the cause of action set forth in his declaration, as he must in order to recover at all, he would be entitled to recover something as general damages ; but he insists that the allegations in the declaration are not sufficient to entitle him to recover for the special damages claimed, because it is not averred in the declaration that the defendant knew when ho sold the sheep to the plaintiff that the plaintiff' intended to mingle them with other sheep, tó whom those sold might communicate the disease with which they were affected.
Granting all this, the proper mode of reaching the difficulty is not by a motion in arrest. If the special damages are not of a character that the plaintiff is legally entitled to recover, either because they are too remote, or because they are not sufficiently set out in the declaration, it will not be intended after verdict that the plaintiff was allowed to recover them. .If the plaintiff attempts to recover for such special damages at the trial, the proper mode of raising the question is to object to the admissibility of the evidence, or to the instructions to the jury, or botín
It has never been supposed that when under a declaration the plaintiff' would be entitled to general damages, that such declaration was made defective eyen on demurrer by alleging special damages, even where they were confessedly such as the party could not recover. We are not aware of any case in which a declaration containing a single count-has been held defective on a motion in arrest, when the same declaration would have been good on demurrer, and we think no such" case can be found. Very many defects in declarations which would be bad on demurrer, are cured by verdict, and cannot be raised by a motion in arrest.
Now was this result, or consequence, a natural one, one that might reasonably and ordinarily be .expected from selling a' flock of sheep infected with, a contagious disease ? Everybody understands that these animals are commonly and usually kept in flocks or herds of considerable numbers, and often of very large numbers, that they are rarely if ever kept separate, that they are short lived, and far more subject to constant shift and change than any other species of domestic animals. If the plaintiff sustained some peculiar or special loss on account of this disease of the sheep, by his putting them to some new and unusual use, which the defendant could not reasonably have expected or anticipated would or might be done, then he would not be liable for such special damage unless he knew of such intended object or use to be made of them when the trade was made. But the placing these sheep with others was one of those natural and ordinary acts and modes of using such animals, that the defendant might reasonably expect it would or might be done, and that as he knew they had a contagious disease, they would thereby communicate it. He was therefore liable for such consequence or damage, though not expressly informed that such use was intended by the plaintiff.
The only error we discover is that the defendant had the benefit of instructions to the jury much more favorable than he was entitled to.
Judgment affirmed.