20 Or. 544 | Or. | 1891
— The respondent’s counsel contends that the items going to make up plaintiff’s damages are so speculative, remote and uncertain as to form no basis for damages in this case, and therefore the complaint does not state a cause of action. If we concede that his premises are correct, the conclusion drawn by him does not follow. The complaint sets out a contract between the parties and avers a breach thereof by defendant. The demurrer admitting the truth of the complaint, the plaintiff is entitled to nominal damages at least, and this is sufficient on demurrer. (1 Suth. Dam. 759.) If the allegations of the complaint, in which plaintiff seeks to lay down the rule by which the damages are to be estimated, are insufficient or irrelevant, the defect cannot be reached by demurrer, so long as the other parts of the complaint contain a sufficient statement. If these damages are sought to be recovered at the trial, defendant may then object to the evidence. An erroneous claim of damages does not make a complaint demurrable. (1 Suth. Dam. 762; Crowley v. Davidson, 10 Minn. 392; Leland v. Tousey, 6 Hill, 328; W. U. T. Co. v. Hopkins, 49 Ind. 223.) The allegation of damages in the complaint is, “that by reason of the failure and neglect of the said defendant above set forth (that is, the failure to run the cars and carry passengers according to contract), the plaintiff was prevented from selling for $170,000 the portion of its said land which has been sold, which sum would have been the market value thereof, and is now prevented from selling the portion of its land remaining unsold for the sum of $310,000, which sum would be the market value thereof, and plaintiff is thereby and otherwise damaged in the sum of $20,000.” Omitting therefrom the portions objected to by defendant, the allegation would read, “that by reason of the failure and neglect
Judgment of the court below is therefore reversed and the cause remanded with directions to overrule the demurrer.
