| Ark. | Feb 4, 1893
The claim of the plaintiff, Bunch, was for damages alleged to have been sustained through the failure of the defendants, Potts Bros., to ship the potatoes within the time contemplated by the contract. The promise of the defendants was to ship as soon as the weather would permit them to do so without exposing the potatoes to the danger of freezing ; and it is not entirely clear from the record that the trial court has found that there was any avoidable delay in making the shipment. But construing the conclusions of fact stated in the bill of exceptions to embrace a finding that there was such delay, only nominal damages were recoverable for it if no actual damage was suffered; and the failure to recover damages merely nominal can not entitle the plaintiff to a reversal of the judgment. Buckner v. Railway, 53 Ark. 18" court="Ark." date_filed="1890-03-08" href="https://app.midpage.ai/document/beaver-v-frick-co-6542516?utm_source=webapp" opinion_id="6542516">53 Ark. 18; Glasscock v. Rosengrant, 55 Ark. 376" court="Ark." date_filed="1892-01-23" href="https://app.midpage.ai/document/glasscock-v-rosengrant-6542851?utm_source=webapp" opinion_id="6542851">55 Ark. 376.
In the absence of any special damage, the general damage a vendee is entitled to recover for the non-delivery of goods is the difference between the contract price and the market value of the goods at the time and place of delivery, with interest. Under this rule, if the market value of the potatoes was not above the contract price on the day they would have reached Little Rock, if shipped at the proper time, the plaintiff sustained no loss for which he can maintain an action. 2 Sedg. Dam. secs. 733, 734. But if they were worth more than the stipulated price on the day they should have been delivered, there was no evidence that warranted the court in finding' that their value had diminished in the short time that intervened before the day on which the defendant offered to deliver them; and the law will not allow the plaintiff to recover for a loss he could have avoided by accepting them. 2 Sedg. Dam. sec. 741. It is said, however, that he was justified in refusing the potatoes by the fact that he was not permitted to unload them before paying the amount of the invoice ; and also by the additional fact that it was afterwards-ascertained that a shortag'e existed in the quantity charg'ed for. But he had no right under the contract to have the cars unloaded before making payment ; and the fourth finding' of the court is against the contention that any shortage existed.
The only attempt to prove a special damag'e was made by Bunch’s own testimony. He stated that he had contracts with parties in Little Rock, where he was engaged in business, for the re-sale of thepotatoes, and that he lost in profits’ from 25 to 50 cents per barrel in consequence of the non-delivery of the potatoes before it was too late to sell them, as he had expected to be able to do, for use as seed. The indefinite nature of this statement as to the plaintiff’s loss per barrel indicates that he had no contracts to re-sell the potatoes at any fixed price. And his conditional offer to receive them at the contract price after they reached Lfittle Rock, without objection as to the time they were tendered, was a circumstance tending to show that he was not injured by the defendant’s’default in not forwarding them at an earlier day. Weed v. Dyer, 53 Ark. 160; Benj. on Sales, sec. 900. A fact of like tendency is found in his letter of February 19th, the tenor of which manifests the intention to receive the potatoes if shipped without further delay. It is an inference, too, that may be fairly drawn from other facts of which there is evidence, that the plaintiff might have obtained a substitute for the goods in time to have fulfilled his sub-contracts, and at a price that would not have reduced his profits. If he could have done so by a reasonable effort, and that course was necessary to his protection, it was his duty to pursue it. Benj. Sales, sec. 877; 1 Sedg. Dam. (8th ed.) secs. 201, 205; 2 do. secs. 740, 741. Warren v. Stoddart, 105 U.S. 224" court="SCOTUS" date_filed="1882-04-24" href="https://app.midpage.ai/document/warren-v-stoddart-90562?utm_source=webapp" opinion_id="90562">105 U. S. 224. Moreover, it is not shown that, at the time the principal contract was entered into, the defendants had notice of the sub-contracts; and without such notice the special damage claimed could not be-recovered. 1 Sedg. Dam. secs. 156, 158, 161, 202; 2 do. sec. 740; St. Louis, etc. Railway v. Mudford, 48 Ark. 509.
As the general finding of the court is supported by the evidence, and is not contrary to any special finding -of facts made in the cause, it is conclusive against the plaintiff’s claim to substantial damages; for we think he was not prejudiced by the court’s view of the law applicable to this branch of the case. The judg-ment is therefore without error, iu so far as it dismisses his complaint and discharg-es the attachment at his cost; and to that extent it is affirmed.
But the court erred in declaring that the potatoes were the property of the plaintiff and in giving judg-ment against him on the counter-claim for the amount of the contract price. The action of the defendants in accepting the offer made by the plaintiff in his letter of February 25 to take the potatoes on the conditions in that letter mentioned, and in delivering the bills of lading- for him at the Exchange Bank, was sufficient to vest in him the general property in the goods. But the defendants still had a special property in them growing out of their right to hold them until the price was paid or tendered. State v. Carl, 43 Ark. 357. And while the goods were thus held for the defendants by the carrier, the plaintiff attached them as the property of the defendants. The latter had, immediately before they were seized, treated them as belonging entirely to themselves by directing their agent to sell them to a third person. By these acts we think the parties concurred in rescinding the defendants’ partial performance of the contract; and the effect of this was to divest the plaintiff of any title he had acquired. He attached, then, as he assumed to do, the defendants’ goods, and not his own ; and, on the discharge of the attachment, the court should have ordered that the proceeds of the sale of the potatoes be paid to the defendants. As the property was theirs, they could maintain no action for the price.
But if the facts were otherwise, the amount of the counterclaim placed it beyond the jurisdiction of the justice ; and the appeal to the circuit court invested that court with no power to try any issue that might not have been tried by the justice. St. Louis, etc. Railway v. Richter, 48 Ark. 353; Texas, etc. Railway v. Hall, 44 Ark. 375" court="Ark." date_filed="1884-11-15" href="https://app.midpage.ai/document/texas--st-louis-railway-v-hall-6541685?utm_source=webapp" opinion_id="6541685">44 Ark. 375; Amis v. Cooper, 25 Ark. 14" court="Ark." date_filed="1867-12-15" href="https://app.midpage.ai/document/amis-v-cooper-6539543?utm_source=webapp" opinion_id="6539543">25 Ark. 14; Whitesides v. Kershaw, 44 Ark. 377" court="Ark." date_filed="1884-11-15" href="https://app.midpage.ai/document/whitesides-v-kershaw-6541686?utm_source=webapp" opinion_id="6541686">44 Ark. 377; Const. 1874, art. 7, sec. 40. The judgment against the plaintiff for the price of the potatoes being therefore void, it will be vacated; and the cause will be remanded for further proceedings conforming to this opinion.
Cf. Murrell v. Pacific Express Co. 54 Ark. 22" court="Ark." date_filed="1890-12-06" href="https://app.midpage.ai/document/murrell-v-pacific-express-co-6542641?utm_source=webapp" opinion_id="6542641">54 Ark. 22; W. U. Telegraph Co. v. Short, 53 Ark. 434" court="Ark." date_filed="1890-10-18" href="https://app.midpage.ai/document/western-union-telegraph-co-v-short-6542608?utm_source=webapp" opinion_id="6542608">53 Ark. 434. (Rep.)