For the purposes of a decision in this case, it will only be necessary to notice specifically the rulings of the court on the motion to strike the claim for special damages, as set out in the tenth count of the complaint.
It is clear that in the tenth count the plaintiff has alleged a contract existing between the plaintiff and the defendant, and a breach of that contract. This would entitle the plaintiff, if there were no special circumstances in the case, to such damages as would generally result from such breach, according to the usual course of things, but in this case the plaintiff alleges special circumstances in the contract which take it out of the usual course of things. In the case of Daughtery v. Amer. Union Tel. Co., 75 Ala. 168, 51 Am. Rep. 435, Mr. Justice Stone says, "Very many contracts have this character," and he cites the following as being some of them: Ill. Central R. R. Co. v. Cobb, 64 Ill. 128; Booth v. Spuyten Duyvil R. M. Co., 60 N.Y. 487; Randall v. Raper, El., Bl. El. (Q. B.) 84 — and follows these citations by saying:
"If these special circumstances be unknown, not communicated, then they are not the natural result of the breach; for they did not result from it in the usual course of things. If, however, they are communicated, they become an implied element of the contract, and parties are presumed to contract in reference to such special circumstances."
In the leading case of Hadley v. Baxendale, 9 Exch. 341, it was said of damages that may be recovered on a breach of contract that:
They "should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it." W. U. T. Co. v. Bowen, ante, p. 253, 76 So. 985.
In volume 1, Sutherland on Damages, p. 188, par. 50, it is said:
"It is a rule of interpretation, too, that the intention of the parties is to be ascertained from the whole contract considered in connection with the surrounding circumstances known to them; if it appear by such circumstances that the contract was entered into and known by both parties to be entered into to enable one of them to serve or accomplish a particular purpose, whether to secure a special gain OR TO AVOID AN ANTICIPATED LOSS [capitals ours], the liability of the other for its violation will be determined and the amount of damages fixed with reference to the effect of the breach in hindering or defeating that object."
In 8 R. C. L. par. 27, p. 459, it is said:
"In addition to general damages, the injured party is entitled to recover special damages which arise from circumstances peculiar to the particular case, where those circumstances were communicated to or known by the other party at the time the contract was made; that is, he may recover such damages as are the reasonable and natural consequence of the breach under the circumstances so disclosed as may reasonably be supposed to have been in the contemplation of both parties."
In the case of Bixby-Theirson Lumber Co. v. Evans, 167 Ala. 434,52 So. 844 (29 L.R.A. [N. S.] 194, 140 Am. St. Rep. 47) Mr. Justice Sayre, in approving the rule as laid down in the case of Lonergan v. Waldo, 179 Mass. 135, 60 N.E. 479, 88 Am. St. Rep. 365, says:
"The courts generally assent to the proposition that, if the plaintiff's special ulterior purposes in making the contract are disclosed, they then become an element of the duty thereby imposed upon the defendant, and afford a substantial basis for the assessment of special damages."
And if in the making of a contract there is an innocent misrepresentation of one of its terms or conditions, and a party suffer thereby, it operates to give the party suffering the damage a right of action ex contractu for damages which he has sustained by the breach. 9 Cyc. p. 410. The line of cases cited by appellee's counsel do not apply in cases of this kind.
This case does not rest upon a contingent contract to be made with a third party, but the plaintiff made a contract with the defendant, for a consideration, by the terms of which the defendant was to inform plaintiff of the place where the lumber was to be loaded upon the defendant's vessel, with a knowledge on the part of the defendant that its location on the vessel would affect the validity of insurance which the defendant knew the plaintiff had contracted for or would contract for.
By the failure to notify the plaintiff as defendant had agreed to do the plaintiff did not fail to insure the property, but failed to insure it in such way as that the contract of insurance would be valid and enforceable; the defendant knowing all the time that the plaintiff was insuring his property against the perils of the sea, and that it was necessary for plaintiff to have correct information regarding the location of the lumber.
The tenth count of the complaint sufficiently sets out a substantial cause of action for a breach of the contract, and the allegations of special damages claimed by the plaintiff are sufficiently stated therein, and the trial court committed error in granting the motion to strike.
As we view it, it is unnecessary to pass upon the various rulings of the court with reference to the other counts, but, for the error pointed out, the judgment of the trial court is reversed, and the cause remanded.
Reversed and remanded. *Page 226