77 S.E. 412 | N.C. | 1913
Action to recover damages for the failure to deliver certain goods bought by plaintiff from defendant in New York, which was also the place of delivery fixed by the contract of sale. The goods bought by plaintiff consisted of men's and children's clothing: 165 pairs of pantaloons and 299 serge and cassimere suits for children, which had been damaged by water used in extinguishing a fire in defendant's store, the price being $237.05. The amount of damages claimed by plaintiff is $850. Verdict and judgment for plaintiff, and defendant appealed.
There are several questions of evidence in the case. The plaintiff offered testimony as to the real value of the goods he bought, with the view of showing that they were worth a great deal more than he gave for them, and a witness, L. W. Davis, was introduced by the defendants to prove that he had seen the defendants' stock of goods but a short time before the sale to plaintiff. This (499) testimony was offered to show that defendants had not kept in their stock any goods of the character and value of those described by the plaintiff's witnesses. It is evident that the witness was not qualified to testify to the fact proposed to be established, because he had not seen the stock from which the sale of the goods was made, but he was afterwards permitted to state the kind of goods defendants carried in their stock, and to answer fully the excluded question. If, therefore, there was any error, it was cured. Gossler v. Wood,
There was some controversy between the parties as to whether plaintiff bought cassimere, serge, or cotton suits; and plaintiff, in order to identify and fix the quality of the goods he did buy, was permitted to exhibit to the court and the jury suits of the three kinds, and to show the difference in quality. It was not for the purpose of showing the *412 value of the goods he bought, but merely to illustrate the difference in texture and quality of different sorts, as a means of informing the jury of the kind and quality he purchased. We do not see why this was not competent. S. v. Vann, post, 534. The other exception to evidence is without merit, and requires no comment.
The last exception is to the instruction of the court, that if there had been a breach of the contract by defendant, the plaintiff was entitled to recover nominal damages, if no substantial damages had been shown; and this is true. Chaffin v. Manufacturing Co.,
No error.
Cited: Lumber Co. v. Mfg. Co., ante, 398; In re Smith,
