By an indenture duly executed, the defendants leased to the plaintiff their farm at Wrightsville for a two-year term from and including October 8, 1924. They refused to allow the plaintiff to take possession under the lease, and this action of contract was brought returnable to the Montpelier city court, whence the case comes to us on the defendants' exceptions, after a verdict had been returned and a judgment rendered thereon against them.
The defendants seasonably filed a motion to set aside the verdict, and for a judgment in their favor, on the ground that there was no evidence that the defendants repudiated the lease by refusing the plaintiff possession, and saved an exception when the motion was overruled. The ruling was without error. The plaintiff testified to the effect that on Monday, the second *Page 435 day before the beginning of the term, he and the defendants had some trouble regarding his pay for moving them; that on that occasion Mrs. Veo, in her husband's presence, said she wanted nothing more to do with the defendant, assaulted him, and ordered him off the place; that when he told Mrs. Veo that he should move in on the 8th, she replied that she should be there too; that the defendants vacated the place, and that he went there on the 7th and found everything locked up, the gates closed and one nailed up; that he then took counsel, interviewed Mr. Veo, and tried to get the matter adjusted, but he refused him the place. Just what the plaintiff testified to regarding this interview was that Veo "objected" to his having the place; but in the circumstances, the jury would be warranted in accepting this as a refusal. Mrs. Veo admitted that she told the plaintiff, when he said he should take possession, that "she should be there," and the record warrants the inference that this cryptic statement meant that she should be there to prevent the plaintiff from taking possession.
The defendants denied that they broke the lease, and insisted that the plaintiff repudiated it by telling them on the occasion of the trouble to keep their property, for he didn't want it. There was thus presented a conflict in the evidence as to who breached the contract, with evidence to sustain the claim of each contestant, and the jury having accepted the plaintiff's version of the matter, as it might well do, the exception referred to avails nothing.
The other exceptions refer to the matter of damages — the defendants' position being that under the pleadings and proof no recovery of damages could be had. The defendants' refusal of possession amounted to a breach of an implied covenant of the lease, and was an invasion of the plaintiff's legal right, for which the latter was entitled to nominal damages, at least. Cole v. Drew, 44 Vt. 49, 8 A. 363; Holden v. Rutland Ry. Co., 72 Vt. 156, 47 A. 403, 82 A.S.R. 926. The parties agree that the general rule of damages in such cases is the difference between the rental value of the premises and the rent reserved in the lease. But there was no proof on this subject, so nothing could here be recovered under that rule. The plaintiff may also recover such special damages as the law allows him, if properly alleged and proved. But special damages must be declared for, or they cannot be proved. Our cases show that damages are general *Page 436 when they necessarily and proximately result from the wrong alleged, without regard to the special character, condition, or circumstances of the party wronged; they are special when they proximately result from the wrong on account of the special character, condition, or circumstances of the party wronged.Hutchinson v. Granger, 13 Vt. 386; Rogers v. Bigelow, 90 Vt. 41, 96 A. 417.
The only allegations of special damages found in the complaint before us are for loss of time and expenses "incurred in preparing to take possession of said premises," and for "loss of profits which the plaintiff verily believes he has sustained by being deprived of said premises and personal property." Nothing was proved under the latter allegation, and no question arises thereunder. Under the former allegation, items aggregating $40.10 were properly proved and allowed. These items covered the time and expense incident to the execution of the lease, the labor of packing and unpacking plaintiff's goods, and the time spent on the 7th trying to get the possession. These were damages proximately resulting from the defendants' default and were recoverable under the complaint.
But all else allowed by the jury was special damage, and it was not here recoverable, simply because it was not declared for. The extra trouble and expense of procuring hay to winter the plaintiff's stock and the extra labor of caring for his hogs were items of damage that accrued to him on account of his situation and circumstances. They were improperly allowed herein, not because they were not legitimate elements of recoverable damages, but because they were not pleaded.
The errors in the assessment require a reversal, but the record affords the means of correcting them, and the case will not have to be remanded. Ellis' Admr. v. Durkee, 79 Vt. 341, 65 A. 94.
Judgment reversed, and judgment for the plaintiff for the sumof $40.10, with interest thereon from November 18, 1924, and withcosts below. *Page 437