96 Ala. 255 | Ala. | 1892
Appellee sued to recover of appellant damages for tbe alleged breach of a contract by which tbe latter agreed to sell tbe former two hundred and fifty barrels of Irish potatoes, to .be divided in two shipments of one hundred and twenty-five barrels, each, on the 1st and 15th of January, 1891, respectively, all to be shipped to ap-pellee at Eufaula, Alabama.
Tbe questions reserved for tbe decision of this court are as to tbe competency and sufficiency of tbe testimony to establish Yanderbilt’s authority to make tbe sale as agent for appellant, and tbe terms of such sale, and as to tbe measure of damages: Tbe first question is raised,by exceptions to tbe rulings of tbe court on tbe testimony and on tbe refusal of tbe court to grant a new trial, ■ and tbe second question is raised by exception to tbe charge of the. court.
Tbe fact of Yanderbilt’s agency rests in parol, and for that reason its existence and the extent of bis authority are questions for tbe jury. Neither its existence nor extent could be proved by tbe mere declarations or acts of Yander-bilt, although be professed to be acting for appellant. Such acts and declarations are not binding on appellant, unless Yanderbilt’s authority or appellant’s assent to, or ratification
While the orderly and better practice is to first introduce proof of the agency, or of facts from which the agency may be inferred, the court is not without discretion in that matter, and may admit the proof in the inverse order to that above stated, and retain or exclude the testimony as to the acts and declarations of the alleged agent, according to the fact whether or not the subsequent proof has any tendency to establish the agency. — The Central Penn. Telephone Co. v. Thompson, 112 Penn. St. 118.
The correspondence between appellee and appellant, and also Stahler’s deposition, tended to show the relation of
"We will not consider the weight or sufficiency of the evidence, as the case must, under the view a majority of the court takes of the law, go back to the Circuit Court for another trial; and without considering the testimony further, on the question of agency, we proceed to discuss the question of the measure of damages, raised by the charge of the court, and also by the motion for a new trial on the ground of the insufficiency of the evidence to support the verdict.
The two cardinal principles which govern in actions for damages for the breach of contracts are, first, that actual compensation will only be given for actual loss; and, second, that the contract itself furnishes the measure of damages. This last rule, however, does not always mean that the measure of damages on breach of the contract is the price stipulated therein on full performance, but in many cases it is held to mean the actual injury sustained in consequence of the defendant’s default. The rule as generally stated in actions for the recovery of damages for the failure to deliver goods, where the ’price has not been paid, is that the plaintiff is entitled to recover the difference between the agreed price and the market value of the goods at the time and place of delivery with interest. — Bell v. Reynolds, 78 Ala. 511. And in its charge to the jury the court below instructed them, that if the plaintiff was entitled to recover in this action, the measure of his damages would be as stated in the general rule above laid down, except that the charge did not include interest. To the giving of this charge the defendant excepted, and his exception is based on the ground that the contract binds plaintiff to pay the freight charges on the potatoes from Philadelphia to Eufaula, the stipulation in the contract being that the potatoes should be shipped free on board the cars at Philadelphia.
This charge would unquestionably be erroneous, had there been any proof on the trial showing the cost of transportation from Philadelphia to Eufaula.' — Echols v. L. & N. R. R. Co., 90 Ala. 366; L. & N. R. R. Co. v. Gilmer, 89 Ala. 534; Johnson v. Allen, 78 Ala. 387. But the fact is, there was no proof whatever on this subject. In the absence of such proof, it is a question not free from difficulty whether the charge, as applied to the evidence in the case, is objectionable.
Did the plaintiff, on making proof, as he did, of the dif
It might be suggested with much force that, in the absence of all proof on that subject, it is possible that plaintiff would not have been compelled to pay any freight charges whatever on the potatoes from Philadelphia to Eufaula, notwithstanding he bought the potatoes free on board the cars at Philadelphia. "What his shipping arrangements with the railroad companies may have been, or what charges, if any, he would have been required to pay on this shipment, the jury could not know from the testimony; and if the charge is held erroneous, because plaintiff failed to prove what he would have had to pay as the cost of transportation, might it not be the assumption of a fact which would never have had an existence ? If anything is to be presumed; is it not a more reasonable presumption (and in favor of the correctness of the ruling of the court below), that the price shown by the testimony to have been the market value of the potatoes at. Eufaula was their value at that place,'after allmuing for the cost of transportation? Assuming, by way of illustration, that it be a fact that plaintiff would not have been required to pay freight charges on said shijament, would it have been incumbent on him to prove such negative before being allowed to recover on his proof of the difference between the con- • tract price and the market value at the time and place of delivery?
Without pursuing the argument further, the writer confesses to doubt on the question; but the other members of the court are clear that it was part of plaintiff’s case to prove what such freight charges would have been, and thus to. show the actual damage he sustained by defendant’s failure to deliver the potatoes; and there are strong reasons for that conclusion.
In the case of Rose's Exs. v. Bozeman, 41 Ala. 678, it was said by this court: “The plaintiff is limited to a just compensation for his actual loss — is entitled to an indemnity, and nothing more; and, consequently, is never to be placed in a better situation than that in which he would have been
Looking to the contract between the parties, which, according to the second cardinal principle above stated, must furnish the measure of damages, it appears that the place of delivery was “free on board the cars at Philadelphia,” to be shipped to Eufaula; that being the place with reference to which the sale was made, the goods having been sold by defendant to plaintiff for sale by him at Eufaula. Under these facts, the damage plaintiff sustained was the difference between the contract price and the market value of the potatoes in Eufaula at the time of delivery, less the expense of transportation from Philadelphia to the latter place; and the plaintiff could not make out his entire case, without proving both the market value at Eufaula and the cost of transportation. It was as much incumbent on him to prove one as the other, because it was only by the ascertainment of both that his actual damage could be determined. — Hood v. Ditson, 90 Ala. 377; Wilson v. Martin, 90 Ala. 518.
Under the facts of this case, the transportation expenses to be deducted from 'the market value of the potatoes do not constitute independent matter of defense, but they arise from the terms of the contract itself, and are made by the contract an indispensable element in the measure of plaintiff ’s recovery. In the absence of such proof, there were no sufficient data from which the jury could ascertain the actual damages sustained by plaintiff irom defendant’s breach of the contract. Such actual damage could only be estimated on proof of the contract price of the potatoes, their market value at Eufaula at the time fixed by the contract for their delivery, and the cost of transportation on the cars from Philadelphia to Eufaula. And the true measure of such damage would then be the difference between the contract price and the market value at Eufaula, at the time of delivery, less such cost of transportation.
Under the view of the law adopted by a majority of the court, the Circuit Court erred in the charge given, and also in denying appellant’s motion for a new trial; and its judgment is accordingly reversed, and the cause remanded.
Reversed and remanded.