Since our former decision the plaintiffs have filled a blank in the first count of the declaration, so that it now avers that the lease of the store held by Brayman Trafford terminated October 5, 1885, and said store was then leased to the plaintiffs, and has ever since been exclusively their premises; that the defendants had notice of this, and were requested to leave said premises and remove the keeper, but refused to do so, causing the plaintiffs great damage to their business. We think that the count as amended sets forth a cause of action which will entitle the plaintiffs to recover, if an action on the case is a proper remedy.
The defendants contend that the proper remedy for the injuries complained of in the declaration is trespass and not case, since, as *Page 330 alleged, they are injuries resulting from acts which were direct and intentional. The plaintiffs, however, say that they bring this action to recover, not for injuries which were the direct result of the acts committed, but for injuries to their trade and business as a new firm, which were consequential upon the acts committed, and, therefore, that for these they are entitled to sue in case.
We are of the opinion that the declaration can be considered to have been framed in that view, and, upon the authority of numerous respectable decisions, we have also come to the conclusion that, considering the action in that view, it can be sustained, inasmuch as, if the plaintiffs are willing to waive any damages which they may be entitled to, resulting directly from the acts as trespasses, the defendants have no reason to complain. Branscomb v. Bridges, 1 B. C. 145; Smith v.Goodwin, 4 B. Ad. 413; Shipwick v. Blanchard, 6 Term Rep. 298; Hite v. Long, 6 Rand. 457; Knott v. Digges, 6 Har. J. 230; Waterman v. Hall, 17 Vt. 128, 42 Amer. Decis. 484;Olinger v. McChesney, 7 Leigh, 660, 683; 2 Greenleaf on Evidence, § 226.
Demurrers to both counts of the declaration overruled.