
    Benjamin F. Kraft, Respondent, v. Samuel M. Rice, Appellant.
    
      Complaint for special damages— when it does not sufficiently disclose the facts out of which it arose — complaint alleging d breach of contract not demurrable though the theory of damages is erroneous.
    
    The complaint in an action alleged that one Brintnall loaned the defendant twenty-five barrels of whisky upon the defendant’s promise to return the whisky upon the payment of a note made by Brintnall to the defendant’s order; that-although the note was paid, “the defendant wholly neglected and refused to return to the said Brintnall the said twenty-five barrels of whiskey, and the-said Brintnall, on or about the 36th day of August, 1891, was compelled to, and he did, expend the sum of §500 to secure to himself the return of the said whiskey. Third. That neither the sum of §500, nor any part thereof, has been, paid by the defendant, although payment thereof was duly demanded, but has-been refused. Fourth. That on or about the 22d day. of September, 1898, the-said Brintnall, by an instrument in writing, duly assigned and transferred all his right, title and interest in the said §500 to one Benjamin F. Kraft, the plaintiff herein. Wherefore, the plaintiff demands judgment for the sum of §500, with interest from the 26th day of August, 1891, together with the costs and disbursements of this action.”
    
      Held, that the complaint did not state a cause of action, as it did not allege a breach of the contract;
    That if it had alleged such breach by averring a demand for the return of the whisky, the plaintiff would be entitled to at least nominal damages;
    That the cause of action assigned to the plaintiff, and upon which he sought to recover, was not a cause of action for the breach of the contract, but one for special damages, and that the facts out of which such special damages arose were not sufficiently disclosed to entitle the plaintiff to recover them.
    Barrett, J., concurred on the latter ground.
    
      Semble, that a’pleading -which clearly sets forth a contract and its breach is not demurrable, even though the theory of damages predicated on the breach is erroneous.
    Appeal by the defendant, Samuel M. Rice, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in. the office of the clerk of the county of New York on the 26th day of May, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, overruling his demurrer to the complaint.
    The complaint demurred to reads as follows:
    
      
      “ The plaintiff above named, by Lewis ¡ML Scheuer, his attorney, complaining of the defendant herein, respectfully shows to this Court and alleges upon information and belief :
    ■ “ First.- That on or about the 17th day of January, 1891, one Herman T. Brintnall, at the special instance and request of the defendant herein, loaned to the defendant twenty-five barrels of spring ’88 small grain rye whiskey, the property of the said Brintnall, the defendant promising that he would return the said whiskey to him, the said Brintnall, when a certain note dated January 16, 1891, in the sum of $2,550, made by said Brintnall to the order of the defendant at four months’ time, was paid.
    
      “ Second. ■ Thereafter, and before the commencement of this action, the said note herein above mentioned was duly paid, but the defendant wholly neglected and refused to return to the said Brintnall the said twenty-five barrels of whiskey, and the. said Brintnall, on or about the 26th day of August, 1891, was compelled to, and he did, expend the sum of $500 to secure to himself the return of the said whiskey.
    “ Third. That neither the sum of $500 nor any part thereof has been paid by the defendant, although payment thereof \yas duly demanded, but has been refused.
    
      “Fourth. That on or about the 22d day of September, 1898, the said Brintnall, by an instrument in writing, duly assigned and transferred all his right, title and interest in the said $500 to one Benjamin F. Kraft, the plaintiff herein.
    “ Wherefore, the plaintiff demands judgment for the sum of $500, with interest from the 26th day of August, 1891, together with the costs and disbursements of this action.”
    The ground of demurrer is that the complaint does not state facts sufficient to constitute a cause "of action.
    
      Edward A. Alexander, for the appellant.
    
      Albert W. Venino, for the respondent.
   O’Brien, J.:

We agree with the court below in the formulation of the rule relating to the sufficiency of a pleading on contract, that if it clearly sets,. forth a contract and its breach, even though the theory of damages predicated thereon may be erroneous, it is a statement of a good cause of action.

The difficulty, however, with this complaint, is that there is no allegation of a breach. The whisky having been pledged to the defendant, was rightfully in his possession and was there to remain until a certain note was paid. Though the payment of the note is alleged, there is no allegation of a demand for the return of the whisky, which would be necessary to show a breach. If, in addition to the contract, a breach was alleged, then the plaintiff would be entitled to at least nominal damages, and the complaint would not be demurrable. The complaint, however, was not framed on that theory, but what’is sought is the recovery of $500 paid out to secure a return-of the whisky. What is demanded, therefore, is special damages. If we construe the pleading as one for special damage, which was undoubtedly the theory in the pleader’s mind, then the complaint is clearly insufficient. As stated, what is here sought to be-recovered is $500, claimed to have been expended by the plaintiff “ to secure to himself the return of the said whiskey.” This is an allegation of special damage, which, in the absence of any facts showing how such special damage arose, is insufficient. . .

The rule on this subject.is thus stated in Rumsey’s Practice (Vol. 1, p. 325) as follows; “Where 'special damages are sought to. be recovered, they must be fully and accurately stated. ' (Havemeyer v. Fuller, 60 How. Pr. 316.) Facts must be set forth in the complaint from which the court can see that the plaintiff has sustained damage; a mere conclusion asserting damage is not sufficient. (Thompson v. Gould, 16 Abb. Pr. [N. S.] 424.)”

Apart, therefore, from, the question of whether there is a sufficient allegation to justify nominal damages, it is apparent that such were not sought in this action, but, on the contrary, that the plaintiff had assigned to him, not the cause of action for breach of the contract, but a cause of action for the special damages which Brintnall suffered by being obliged to pay to some one ■— for some purpose or for some reason undisclosed — $500 for the return of the whisky,

We think the demurrer was good and that the judgment should be reversed, with costs, and the demurrer sustained, with costs, but with leave to the plaintiff, upon payment of costs,' to serve an. amended complaint.

Van Brunt, P. J., Rumsey and Patterson, JJ., concurred.

Barrett, J.:

I do not think that the plaintiff here would have been .entitled to-nominal damages, even though he had distinctly averred a breach of the alleged contract. He is the assignee óf but a particular demand, namely, his assignor’s alleged right, title and interest in the sum of $500 which the latter was compelled, in some undisclosed way, to pay to secure the return of' the whisky. He is the assignee of no other demand. Consequently no' cause of action for damages, nominal, ordinary or special, resulting from a breach of the contract is vested in him. The right to the $500, if there be any such right, cannot flow even as special damages for the non-fulfillment of the promise averred. If anything, it is an independent demand—in the nature of a special action on the case — growing out of insufficiently disclosed facts. The damages for the breach of the agreement to return the whisky (upon the payment of the note) wóuld be the cost of replacing it in the market. Upon the other hand, if the refusal to then return it amounted in effect to a conversion, the damages would be its value at the time of conversion. In neither aspect of the case, would tile sum paid to secure its return have been the measure of damages. If in some other aspect that sum might have been recovered, the facts constituting the special case on that head would have been averred. It follows that, however the facts as pleaded be viewed, the plaintiff, by his assignment, took nothing relating to the damages, appropriate either in an action for a breach of contract or for conversion.

For these reasons .1 agree that the demurrer was well taken.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court below.  