111 Ky. 546 | Ky. Ct. App. | 1901
Opinion of the court by
Reversing.
The appellees, Hirst & Rogers, instituted this action in the Jefferson circuit court, common pleas division, against appellant, seeking to recover a judgment for the sum of $588.65, the alleged purchase price of a certain lot of carpeting. The defense relied on in the original and reformed answer and counterclaim is, in substance, that the plaintiffs sold to her and agreed and promised to deliver to her at the depot in Philadelphia a lot of merchandise, to wit, a number of rolls or pieces of carpet, the kind and amount thereof being specified in the answer, and in consideration of the said carpet, and the delivery of same at the place designated on or about the 1st of September, 1897, she agreed to settle with the plaintiffs for same on the 1st day of September, 1897, by executing her note, payable in four months after date, or within ten days by remitting cash to plaintiffs for the whole amount of the agreed price, less a discount of four per cent, on same. It is further alleged that appellant was ready at all times on and after the 1st of September, 1897, to accept and receive the above-described carpets, and to comply with her agreement' concerning same heretofore stated, and that plaintiffs failed and refused to deliver the carpets so purchased by her except as therein stated. The amount furnished and the amount which plaintiffs failed to furnish are specifically set out in the answer, and it is further
The substance of the grounds relied on for a new trial ar£ — First, error of the court in giving the burden of proof to'the plaintiffs; second, error of the court in admitting illegal and incompetent evidence; third, error of the court in refusing to allow the defendant to offer evidence' as to the profits she would have made on the sale of the carpets which plaintiffs failed to deliver under their contract; fourth, error in the assessment of damages; fifth, that the court erred in permitting the plaintiffs’ counsel to close the case; sixth,'error in instructing the jury; and, seventh, error of the court in refusing instructions offered by defendant.
It seems clear to us that under the pleadings in this case the defendant admitted receiving a considerable
It will be seen from the record that the court refused all of the instructions asked by both plaintiffs and defendant and gave the following: “In this case you should find for the plaintiff in the sum of $588.65 with interest from the 30th day of October 1897, unless you shall believe from the evidence that at the time the carpets were purchased by defendant from plaintiff it was agreed that the carpets should be delivered at the depot in Philadelphia for shipment to the defendant on or before the 1st day of September, 1897. If such was the agreement, then you should credit the $588.65 by such sum as you may believe from the evidence represents the difference between the sum that defendant was to pay for such carpets as were not delivered her and the fair market price of such carpets on the 1st day of September, 1897, not exceeding the sum of $269.31, the amount claimed by the defendant on her counterclaim.” It is the contention of appellees that the only damage appellant was entitled to,, if any, was the difference between the contract price and the price at which such goods could have been purchased at the time and place where the delivery was to be made, and that the verdict of the jury allowed her as much as, if not more than, she was entitled to. This contention is controverted by appel
There is some evidence tending to show that the kind of carpets contracted for could not be obtained either in Philadelphia or elsewhere at the time that they should have been delivered to appellant.
It results from the foregoing that the court erred in rejecting the testimony offered by appellant tending to show the profit that she could and would have made by a sale of the carpets if they had been delivered to her, and in failing to instruct the jury upon that hypothesis. If the jury should believe from the evidence that the plaintiffs failed to deliver the goods according to contract, and should not, however, believe that the parties to the contract understood or had in contemplation that the carpets were to be resold in Louisville by retail, then the criterion of recovery would, if any, be the difference between the contract price and the market value of the goods at the time and place of deliver}'. But if the jury should believe that both parties understood that the object and purpose of the purchase and sale was for a resale by retail in Louisville, Ky., .and further believe that the plaintiffs failed to deliver the goods according to contract, then, and in that event, the defendant would be entitled to recover the profits which she can reasonably show she would have
For the reasons indicated, the judgment appealed from is reversed, and cause remanded for a now trial upon principles consistent with this opinion.
Petition for rehearing-by appellee overruled.