Moore, Kirkland & Co. v. Westinghouse Electric & Manufacturing Co.

HEAD, J. The demurrer to the second plea was properly sustained. It is clear that under the facts as they are very fully set out in the plea, it is not shown that the defendants sustained any loss by reason of the plant not being operated during the forty-two hours. For aught that is averred to the contrary, the operation of the plant for nine instead of eleven hours, per day, resulted in no actual loss or damage to the defendants. Indeed, they may have saved by it. The court can indulge no presumption one way or the other. It.was upon the defendants to aver and prove loss. The wages paid to the employes, under the circumstances set up in this plea, furnish no just criterion of damage whatever. Cases may arise where expenses incurred by qne, preparatory to the performance of a contract by another, may form a proper measure of damage for the failure of such other to perform, but most clearly this is not one of them. It is the general rule that demurrer is not the proper method of testing the correctness of an alleged measure of damage. The rule has been applied only to demurrers to complaints. If a complaint contains a cause of action, 458 the plaintiff sustaining it by proof is entitled to recover even though it shows he is entitled to no more than nominal damages, which, generally speaking, entitles him to a recovery of costs. Recoupment is matter of defense. A plea should be considered no defense, which does not defeat or substantially reduce the plaintiff’s recovery. We hold that a plea of recoupment showing that the defendant is entitled to no more than nominal damages, is bad on demurrer. Affirmed.