collected the money, are held to be repugnant to and mutually destructive of each other.10 A complaint may, however, state several grounds or reasons for the relief demanded, or where there is some uncertainty as to the exact ground of recovery, may be so framed as to meet the contingencies of the trial. And if a complaint sets forth but a single cause of action, the fact that it is divided and stated as two causes of action does not make it two.12 So, a party who appears to have a good cause of action will not be turned out of court simply because the pleader has stated the facts in an artificial manner, or has joined several different causes of action in one count, unless the objection thereto is specifically raised.13

1 Hillebrant v. Booth, 7 Tex. 501; Building Association v. O'Conner, 29 Ohio St. 655; Butler v. Kaulback, 8 Kan. 671; Board of Education v. Shaw, 15 Kan. 41. Compare Supervisors v. O'Malley, 46 Wis. 35.

2 Young v. Edwards, 11 How. Pr. 201; Henderson v. Jackson, 40 How. Pr. 168; 9 Abb. Pr. N. S. 303; Quintard v. Newton, 5 Robt. 80; Jamison v. King, 50 Cal. 132; Campbell v. McElevey, 2 Disn. 584; Thomas v. Railroad Co. 97 N. Y. 245.

3 New York Ice Co. v. Northwest. Ins. Co. 21 How. Pr. 296; Sheehan v. Hamilton, 3 Abb. Pr. N. S. 197; 2 Keyes, 304; Lattin v. McCarty, 41 N. Y. 107.

4 Durant v. Gardner, 10 Abb. Pr. 445; 19 How. Pr. 94.

5 Maxwell v. Farnam, 7 How. Pr. 236.

6 Dean v. Leonard, 9 Minn. 130.

7 Trimble v. Doty, 16 Ohio St. 129. And see Morris v. Rexford, 18 N. Y. 552.

8 Hewitt v. Brown, 21 Minn. 163;

9 Wilson v. Smith, 61 Cal. 209. Hun, 432.

10 Thomas v. Browder, 33 Tex. 783.

Plummer v. Mold, 22 Minn. 15.

And see Longprey v. Yates, 31

11 Velie v. Newark etc. Ins. Co. 65 How. Pr. 1; 12 Abb. N. C. 309. And see Whitney v. Chicago etc. Railway Co. 27 Wis. 327; Van Brunt v. Mather, 48 Iowa, 503; Stearns v. Dubois, 55 Ind. 257; Birdseye v. Smith, 32 Barb. 217; Talcott v. Van Vechten, 25 Hún, 565; Barnes v. Jones, 16 N. Y. Week. Dig. 191.

12 Welch v Platt. 32 Hun, 194; 5 N. Y. Civ. Proc. R. 433; 19 N. Y. Week. Dig. 265.

13 Wetmore v. Porter, 92 N. Y. 76. And see Williams v. State, 70 N. Y. 601; Wright v. Wright, 54 N. Y. 437.

18. Averment of damages. -No more damages can be recovered than are claimed in the complaint or

petition; and when a jury gives greater damages than are claimed, the plaintiff cannot have judgment unless he remit all over the amount claimed.2 General damages, such as necessarily and naturally result from the injury complained of, need not be expressly detailed or described in the complaint in order to authorize a recovery. It is enough to state a gross amount as a consequence of the injury. But where damages which are the natural consequences of an act, though not necessarily the result of it, are sought to be recovered, they must be specially alleged in the complaint,5 in order that the defendant may be prepared with evidence to rebut the proof offered of such damages, or the amount or extent of them. Special damages are confined almost exclusively to actions arising on tort, and need be averred only where the right of action depends upon the fact that damage has been sustained. But where the special damage is the foundation of the cause of action, it is a material allegation, and must be fully and accurately stated. Thus, in actions for slander, for words not actionable per se, the right to recover depends upon the question whether they caused special damage, and special damage must be alleged. And damages which may properly be alleged should be pleaded with fullness and accuracy.10 In an action for assault and battery, special damages must be particularly alleged." But bodily or mental suffering, and anxiety of mind, resulting as the natural and direct consequence of a personal injury, need not be specially alleged.12 And in an action of trespass it is not necessary, in order to recover damages which necessarily and naturally result from the injury complained of, to specifically allege them in the complaint.13 But in an action in the nature of trespass de bonis asportatis, the plaintiff's expenses in recovering the posses

15

sion of the property should be specially pleaded.1 So in an action for malicious prosecution, the amount of costs and counsel fees expended by the plaintiff, in defending the prosecution, is matter of special damage, and must be specially alleged and proved. In an action for injuries to land, damages for loss of rents cannot be recovered unless specially alleged.16 And in an action for the possession of land, mesne profits cannot be recovered unless they be specially claimed.17 Nor are special damages, for the detention of premises after the expiration of the term, recoverable, unless alleged in the complaint,18 If it is sought to recover special damage for failure to deliver goods, where there is no market wherein to purchase, such special damage must be alleged and set forth in the pleading.19

1 Curtiss v. Lawrence, 17 Johns. 111; Dox v. Dey, 3 Wend. 356; Cameron v. Boyle, 2 Iowa, 151; Rives v. Kumber, 27 l. 291.

2 Decker v. Parsons, 11 Hun, 295; Crews v. Lackland, 67 Mo. 619; White v. Cannada, 25 Ark. 41.

3 Laraway v. Perkins, 10 N. Y. 371; Jutte v. Hughes, 67 N. Y. 267; Fitch . Fitch, 3 Jones & S. 302; Squier v. Gould, 14 Wend. 159; Argotsinger v. Vines, 82 N. Y. 308; Phillips v. Hoyle, 4 Gray, 568; Camden etc. Oil Co. v. Schlens, 59 Md. 31.

4 See Harrington v. St. Paul etc R. R. Co. 17 Minn. 215; Eten v. Luyster, 5 Junes & S. 486; Louisville etc. R. R. Co. v. Smith, 58 Ind. 575.

5 Low v. Archer, 12 N. Y. 277; Donnell v. Jones, 13 Ala. 490; Bogert v. Burkhalter, 2 Barb. 525; Neary v. Bostwick, 2 Hilt. 514; Baldwin v. New York etc. Nav. Co. 4 Daly, 314; Taylor v. Monroe, 43 Conn. 36; Nunan v. City of San Francisco, 38 Cal. 689; Rice v. Coolidge, 121 Mass. 393; Burrage v. Melson, 48 Miss. 237; Brackett v. Edgerton, 14 Minn. 174. And see Sloan v. Edwards, 61 Md. 89.

6 Shaw v. Hoffman, 21 Mich. 151; Solms v. Lias, 16 Abb. Pr. 311; Barnard v. Berwind, 7 N. Y. Week. Dig. 519.

7 Baggott v. Boulger, 2 Duer, 160; Molony v. Dows, 15 How. Pr. 261; McTavish v. Carroll, 13 Md. 429; Roberts v. Hyde, 15 La. An. 51. An averment of special damage is not traversable unless when it is the gist of the action: Thompson v. Lumley, 7 Daly, 74.

S Havemeyer v. Fuller, 60 How. Pr. 316. And see Taylor v. Keeler, 50 Conn. 346.

9 Bassell v. Ellmore, 65 Barb. 627; 48 N. Y. 561; Anon. 60 N. Y. 262: 19 Am. Rep. 174; Like v. McKinstry, 41 Barb. 186; Kendall v. Stone, 5 N. Y. 14; Foulger v. Newcomb, Law R. 2 Ex. 327. But special damage need not be alleged or proved in an action for slander upon words actionable per se: Yeates v. Reed, 4 Blackf. 463; 32 Am. Dec. 43; Newbit v. Statuck, 35 Me. 315; 58 Am. Dec. 706.

10 Linden v. Graham, 1 Duer, 670; Hallock v. Miller, 2 Barb. 630; Havemeyer v. Fuller, 60 How. Pr. 316; Simmons v. Kayser, 11 Jones & S. 131; Geisler v. Brown, 6 Neb. 254; Whitmore v. Bowman, 4 Iowa, 148; Stiebeling v. Lockhaus, 21 Hun, 457.

11 Stevens v. Rodger, 25 Hun, 54. And see O'Leary v. Rowan, 31 Mo. 117. But in an action in damages for assault and battery it is competent for the plaintiff to offer in evidence, and for the jury to consider the fact, that, as a result of the battery alleged, the plaintiff had become subject to convulsions or fits, although such fact was not specially alleged as a ground of special damage: Sloan v. Edwards, 61 Md. 89. And see Gaither v. Blowers, 11 Md. 552; Tyson 2. Booth, 100 Mass. 258; Curtis v. Rochester etc. R. R. Co. 20 Barb. 282; 18 N. Y. 534.

12 Wright v. Compton, 53 Ind. 337; Curtis v. Rochester etc. R. R. Co. 20 Barb. 282; 18 N. Y. 534.

13 Argotsinger v. Vines, 82 N. Y. 308.

14 Gray v. Bullard, 22 Minn. 278.

15 Thompson v. Lumley, 7 Day, 74,

16 Squier v. Gould. 14 Wend. 153; Wampach v. St. Paul etc. R. R. Co. 21 Minn. 364; Potter v. Froment, 47 Cal. 105. Compare Jutte v. Hughes, 67 N. Y. 267.

17 Livingston v. Tanner, 12 Barb. 481.

13 Rothschild v. Williamson, 83 Ind. 387.

10 Parsons v. Sutton, 63 N. Y. 92.

19. Averment of considoration. Where a consideration is not implied, it is the very gist of an action founded upon contract, and must be specially averred.1 The complaint should disclose the facts, from which it must appear that there was a legal consideration to support the agreement relied on.2 Thus, if an executory agreement between the parties is the consideration of a contract forming the basis of an action between them, this must be pleaded and performance averred. If the contract was founded upon a past act as its consideration, it is usually necessary to allege that such act was performed at the request of the defendant. If the instrument upon which action is brought purports to be "for value received," and is set out in the complaint, consideration is sufficiently alleged.5 In an action upon an instrument under seal, no consideration need be alleged, for a seal imports a consideration. So, in an action upon a promissory note or bill of exchange, no

consideration need be alleged, since the law implies that a note was given upon a sufficient consideration, and it is unnecessary to aver what is implied in law."

1 Spear ". Downing, 34 Barb. 522; 12 Abb. Pr. 437 ; 22 How. Pr. 30; Burnett v. Bisco, 4 Johns. 235; Marshall v. Aiken, 25 Vt. 328.

2 Winne v. Colorado Springs Co. 3 Colo. 155; Glasscock v. Glasscock, 66 Mo. 627; Dolcher v. Fry, 37 Barb. 152; Ross v. Sadgbeer, 21 Wend. 166.

3 Becker v. Sweetzer, 15 Minn. 427.

4 Parker v. Crane, 6 Wend. 647; Spear v. Downing, 34 Barb. 522; 12 Abb. Pr. 437; 22 How. Pr. 30. Compare Farnsworth v. Clark, 44 Barb. 601; Acome v. Am Min. Co. 11 How. Pr. 24.

5 Prindle v. Caruthers, 15 N. Y. 425; Meyer v. Hibsher, 47 N. Y. 265; Leonard v. Sweetzer, 16 Ohio, 1.

6 Reddish v. Harrison, Wright, 221; Douglass". Howland, 24 Wend. 35; Bush v. Stevens, 24 Wend. 256; Northern Kansas Town Co. v. Oswald, 18 Kan. 336; Paddock v. Hume, 6 Oreg. 82.

7 Pinney v. King, 21 Minn. 514; Underhill v. Phillips, 10 Hun, 591; Tibbetts v. Blood, 21 Barb. 650; Durland v. Pitcairn, 51 Ind. 426; Bank of Orleans v. Barry, 1 Denio, 116; Caples v. Branham, 20 Mo. 244; Thackeray v. Hanson, 1 Colo. 365.

? 20. Allegation of fraud.-Where it is sought to maintain a cause of action on the ground of fraud, the facts constituting the fraud must be alleged;1 and a mere general charge of fraud is a legal conclusion, and insufficient.2 But while the facts which constitute the fraud must be alleged, it is not necessary to state minutely all the acts and circumstances tending to prove the general charge.3 If the very statement of the facts of the case involve an allegation of an intent to defraud, an express averment of such intent is not necessary. So, the rule that facts constituting fraud must be directly alleged does not apply to an agreed case where all the facts are stated, and matters of legal inference are left to the court.5 And it is held that when the facts constituting the fraud are not clearly known by the plaintiff, they may be alleged in the alternative. But the complaint or petition must show the connection of the fraud with the alleged damage, so that it may appear to the court that the fraud and