State Ex Rel. Steinbach v. Sizelove

Per Curiam. *50 *49 was an action upon the official bond of appellee, Sizelove, as auditor of Newton county. The breach of official duty alleged was the failure of said auditor to have certain legal notices, affecting county business, published in a certain paper published in said county, of which paper the relator was the owner and publisher. The' alleged breach of duty of said auditor was his alleged failure to comply with §1347 Burns 1914, Acts 1913 p. 154. To the complaint which was in two paragraphs, a demurrer was sustained, and this action of the court is assigned as error. If .a complaint is bad, from any cause, as against a demurrer, neither the trial court nor this court is bound by the *50 statement of insufficiencies contained in the “memorandum” accompanying the demurrer. The trial court may rightfully sustain a demurrer to an insufficient complaint on grounds entirely outside those mentioned in the “memorandum.” Poer, Trustee, v. State, ex rel. (1918), 188 Ind. 55. It then follows that if a demurrer was rightfully sustained, for any cause, the other party cannot insist that there was error because his pleading was good as against the specific objections stated in the “memorandum.” In actions upon contracts, where the breach counted upon is a failure to pay money, the contract itself fixes the measure of damages, as a matter of law; but in contracts where the breach counted upon is the failure to do something other than the payment of money, and where the parties to said contract have not, in said contract, agreed upon and fixed the amount of damage consequent upon such breach, the law will not imply that any actual damage has been sustained as a result of such breach. In cases of this latter kind, the damages, if any, are special and must be specially pleaded. This is also true when a party seeks to recover damages on account of the breach of a duty not arising from a contract, such, for instance, as -the case now under consideration. If we examine the complaint in the instant case, we find no allegation of any special damages. For aught that appears from this record, the cost to appellant, in the matter of labor, materials, etc., had the said notices been given to him to be printed and had he printed them, might have exceeded the amount which he was, by statute, entitled to receive for doing such printing, in which case, he certainly would not have sustained any damage by reason of not printing such notice. Shriber v. Butler (1882), 84 Ind. 576. *51 Again, the duty which the said auditor is alleged to have violated, his noncompliance with said statute, was primarily a duty to the public, and it is elementary that, as to such duties, before the private individual may prosecute an action, he must state facts showing that he has sustained an injury “peculiar to himself.” Walls v. Smith & Co. (1910), 167 Ala. 138, 52 So. 320, 140 Am. St. 24. The complaint now under consideration shows no such facts. It is true that in some cases a complaint is good which shows that the plaintiff is entitled only to nominal damages, as where the act complained of has relation to some property or property right, and, if allowed to pass unchallenged, may at some future time become the “foundation” upon which some claim of right is based. Examples of such are trespasses to realty, and interferences with easements. Ross v. Thompson (1881), 78 Ind. 90. In this case, if we should concede that the complaint in question states facts which would have entitled the appellant to nominal damages, and that the demurrer was wrongfully sustained, yet, the rule is well settled that where the averments of a pleading are such as to entitle a party to only nominal damages, such party is not entitled to á reversal on account of such erroneous ruling. Rhine, Admr., v. Morris (1884), 96 Ind. 81. The appellee insists that as the duty imposed upon the county auditor by said §1347 Burns 1914, supra, was a duty to the public, the appellant could not in any event maintain a private action for damages. In view of the allegations of the said complaint, it is not necessary, and we do not decide this question. The judgment is affirmed.