This is an action to recover unliquidated damages, and as in sucb actions the plaintiff cannot have judgment for more than he claims, the general practice is to set out in the complaint a large sum under a videlicet. “ That is to say,” &c. There is no harm done by this mode of pleading, except when the plaintiff asks to hold the defendant to bail, and exaggerates the alleged damage for the purpose of oppression, by forcing the defendant to give excessive bail. For this the law provides a remedy.
In this case nearly the whole amount of the price paid for the goods is claimed as damages in the original complaint, but there is no suggestion or reason to suppose that the attorney in framing the complaint intended any oppression, or wished to take any advantage of the defendants, and when he found by the affidavit for removal into the Federal Court, that by careless pleading he had exposed his client to this inconvenience, he asked to amend by putting the amount of the supposed damages $499, which if he had thought about “the Federal Court” wouldhavebeen doneinthefirst instance. His Honor allowed the amendment, and we concur with him as to its propriety. What harm is done to the defendants by the amendment % By it they are assured that the plaintiff can in no event recover more than $499. This assurance takes the case out of the operation of the Act of Congress. The defendants will hardly say this slip in pleading amounts “ to an estoppel,” a word very much in vogue at this stage in the 'progress of the practice of the law.
The goods filled the bill in quality and quantity, and the 'plaintiff had paid for them; so it was an executed contract. *625When the goods arrived in Halifax, one month behind time, what was the plaintiff to do ? The vendors lived in New York and had hi it money. A refusal to take the goods, would leave him without any security for the money he had paid. So prudence suggested, “ take the goods and sue the vendors for not sending them in time.” We can see no principle of law or of equity which forbade this. In fact, it was the best thing he could do, as well for the defendants as for himself. Suppose he had refused to take the goods, he would have had no security for the money he had paid, and the defendants would hvae suffered heavy loss in having the goods sent back, or in selling them at auction in the town of Halifax.
It follows, there is no ground on which to presume that, by taking the goods, the plaintiff waived or forfeited his right of action, for the damage he had sustained by a breach of the contract on the part of the defendants. In regard to the measure of damages, we can see no other rule than the difference between the value of the goods in September, when they ought, by the contraed, to have been delivered, and the value in October, when they were delivered.
The notion of having an account taken of what the plaintiff sold the several articles of “ the goods, wares and merchandise, bought of defendant,” cannot be entertained for one moment.
There is no error.
PbR Oukiam. Judgment affirmed.