Opinion
6 Div. 353.
April 16, 1925. Rehearing Denied June 11, 1925.
Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.
Matthews Morrow, of Birmingham, and S. H. Dent, of Montgomery, for appellant.
Where slander is uttered after sale is completed or agreed upon, so as to give plaintiff an enforceable contract, he cannot recover for the slander. 17 R. C. L. 455; Burkett v. Griffith, 90 Cal. 532, 27 P. 527, 13 L.R.A. 707, 25 Am. St. Rep. 151; Brentman v. Note (City Ct.) 3 N.Y. S. 420; Morris v. Langdale, 2 Bos. P. 284; Kendall v. Stone, 5 N.Y. 14; Paull v. Halferty, 63 Pa. 46, 3 Am. Rep. 518. In order to recover plaintiff must aver and prove special damages. Ebersole v. Fields, 181 Ala. 421, 62 So. 73; 25 Cyc. 559; Coffman v. Henderson, 9 Ala. App. 553, 63 So. 808.
Harsh, Harsh Harsh, of Birmingham, for appellee.
Brief of counsel did not reach the Reporter.
In actions for slander of title, special damage of a pecuniary nature is the gist of the action, and such damage must be directly and particularly set out in the complaint; an allegation of loss in general terms not being sufficient. Ebersole v. Fields, 181 Ala. 421, 62 So. 73.
But this rule does not mean that the amount of the loss, in each of the particulars in respect of which special damage is claimed, must be separately stated. The amount of the loss is a matter of proof, and is immaterial so far as the statement of a cause of action is concerned.
We think the complaint in this case sufficiently specifies the elements of the special damage claimed.
These elements of special damage appear to have resulted from the failure of plaintiff to close a pending negotiation for the sale of the land for $3,750.
The law is well settled that if there is in existence, before the perpetration of the alleged slander of title, a valid and enforceable contract for the sale of the land in question, no recovery can be had against the slanderer for the damage resulting from the executory purchaser's breach of his contract to purchase. Burkett v. Griffith, 90 Cal. 532, 27 P. 527, 13 L.R.A. 707, 25 Am. St. Rep. 151; Kendall v. Stone, 5 N.Y. 14; Paull v. Halferty, 63 Pa. 46, 3 Am. Rep. 518; 17 R. C. L. 455, § 2161; 25 Cyc. 561, b, and cases cited.
In such a case the law presumes that the vendor can recover any resulting loss from the defaulting purchaser, and he is left to that remedy.
The complaint does not show the existence of such a contract, and as for that the complaint was not subject to demurrer.
That defense was available under the general issue, and there was no error, therefore, in sustaining demurrers to several special pleas setting up the existence of such a contract prior to the alleged slander. That issue was in fact tried and determined, as shown by the special instructions given to the jury at defendant's request:
"If you are reasonably satisfied from the evidence in the case that the plaintiff had a valid contract of sale of said property with Mrs. De B__________, then I charge you that the plaintiff cannot recover from the defendant any damages sustained as a proximate consequence of a breach of said contract by Mrs. De B__________."
The appeal is on the record only, and, prejudicial error not appearing, the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.
On Rehearing.
Counsel for appellant insist that the defense set up in the special pleas above referred to was in confession and avoidance, and was not available under the general issue. An examination of the amended complaint will show, however, that it alleges that the trade with Mrs. De Bardeleben was pending and incomplete, and that it was never completed. This allegation would be contradicted by proof of a complete contract of sale, and, as the complaint was framed, a special plea, setting up what was in substance and effect a mere contradiction of that allegation, was not necessary.
In such a case, we will not presume that the trial judge erroneously excluded the issue from the jury.
Application overruled.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.