Dissette v. Dost

SMYTH, Chief Justice. Dost sued Dissette in assumpsit on the common counts for $1,654.48, and attached to his declaration a bill of particulars, in which he claimed that sum as a balance due to him for salary which Dissette had agreed to pay him, and for money advanced on account of Dissette. In his affidavit of defense Dissette admits that he is indebted to Dost in the sum of $767.53, but alleges [456] a set-off in the amount of $5,000. There was a motion for judgment on the ground that the affidavit was defective. The court sustained the motion as to the amount which was admitted to be due, but overruled it as to the remainder. Judgment was entered accordingly, and Dis-sette, alleging error, brings the case here for our consideration. If there was enough in the affidavit to raise a question of fact in relation to the set-off for the consideration of a jury, the court erred; but, if there was not, the judgment must be affirmed. The sufficiency of the affidavit is, then, the sole question in the case. [1] It alleges that prior to the commencement of the action plaintiff was in the employ of the defendant under a contract whereby he bound himself to secrecy respecting the trade secrets about goods manufactured by Dissette, the methods and costs of manufacturing them, patents applied for and to be applied for, and confidential information relating to the manufacturing of the goods. But, notwithstanding this, he, so it is averred, without the knowledge or consent of the defendant, wrongfully divulged “to divers persons”' the matters which he was obliged to keep secret, and “by divers other means conspired to injure * * * defendant’s business, * * * all in breach of said contract of employment, and which caused defendant damage in the amount of $5,000.” It will be noticed the affidavit does not allege who the divers persons were to whom it is alleged Dost revealed the secrets of the business, the means by which he conspired to injure the defendant’s business, or that .any act was done in pursuance of the conspiracy. Nor does it say even that the divers persons were rivals of Dissette’s in business. So far as the affidavit is concerned, the disclosures may have been made to fellow emp^és, or to other persons who never acted upon them. The mere disclosures could have done Dissette no harm. In these respects we think the affidavit is too indefinite. Durant v. Murdock, 3 App. D. C. 114. : [2] But its more serious defect lies in the averment with regard to damages. All it says on that point is that the breach in the respects alleged caused Dissette damage in the sum of $5,000. In an early case the Supreme Court of the United States used this language: “Special, as contradistinguished from general, damage is that which is the natural, but not the necessary, consequence of the act complained of.” Roberts v. Graham, 6 Wall. 578, 18 L. Ed. 791. Compare Troy Laundry Co. v. Dolph, 138 U. S. 617, 11 Sup. Ct. 412, 34 L. Ed. 1083. [3, 4] It did not necessarily follow that the acts complained of in the affidavit produced any damage.. All may have occurred without causing a particle of injury .to Dissette; hence, the damage, if any, was special,- and the facts which show how the special damages arose must be stated, although it is not required that evidence shall be pleaded. 17 C. J. 1005. As bearing on the same point, consult The Director (D. C.) 26 Fed. 708; Warner v. Bacon, 8 Gray (74 Mass.) 397, 69 Am. Dec. 253; Chicago, B. & Q. R. Co. v. Emmert, 53 Neb. 237, 73 N. W. 540, 68 Am. St. Rep. 602. The necessary facts were not stated [457] in the affidavit, and because of this could, not be established. Rice Auto Co., Inc., v. Spillman, - App; D. C. -, 280 Fed. 452. [5] No doubt the affidavit states a case for nominal damages. This, however, was not enough. Such damages are given, not as an equivalent for wrong, but as a recognition of a technical injury, and by way of declaring the right. They are not damages small in amount. In reality they are damages in name only, and not in fact. 17 C. J. 720, and cases cited in the notes. For the reasons given, we think the affidavit did not aver a defense, in whole, or in part, to Cost’s claim, as required by the seventy-third rule, and hence the judgment must be, and it is, affirmed, with costs. Affirmed.