94 N.J.L. 230 | N.J. | 1920
The opinion of the court was delivered by
This, is an action for breach of contract tried by the court without a jury. The trial resulted in a finding in favor of the plaintiff and an assessment of damages at $13,641.31. The contract was for the sale and delivery of hops. It was a continuing contract, requiring the delivery of one hundred bales each year of the crops of 1914, 1915, 1916, 1917 and 1918. The contract provided that the hops furnished should be equal to or better than good brewing Pací fir-coast hops,: that samples should be delivered to the buyer in advance. .Upon delivery, the buyer should have five days in which to inspect, and notify the seller, in ease of rejection, as not up to the standard provided by the contract.
In the present case, one hundred bales, were shipped in 1914. They were received by the buyer at Elizabeth in due
Most of the matters of fact involved in the litigation were set out in the pleadings. A motion was made for judgment in favor of the plaintiff on the pleadings. This motion was granted. In this situation, however, apparently, the only thing to be determined was the question of damages, but a considerable amount of testimony was taken covering, not only that matter, but also the question of liability, and the question of breach. The trial judge made a finding covering the whole case. We have considered the case as one which was tried out in all of its issues, and not as one where the question of damages was the only matter to be settled by testimony.
The trial judge’s conclusions in form were twenty-one findings and rulings, also attached thereto, denying or approving thirty-seven written, requests by the defendant, exceptions thereto, on which the defendant assigned sixty-one grounds for the reversal of the whole judgment entered in the case. These grounds for reversal, however, are argued under eight heads in the defendant’s brief. It is the settled and accepted practice of this court to consider no other grounds of appeal than those argued, because the others may properly be considered as having been abandoned. Marten v. Brown, 81 N. J. L. 599.
The first, fourth and sixth grounds may properly be .considered together. They will be disposed of hereafter, by a discussion of the fundamental or meritorious question in
The third point is the improper exclusion of the brewers’ bulletin showing price quotations of hops. The weight of authority is to the effect that a, price current list, published in a newspaper, is not competent evidence of market value without proof as to the source from which the information therein was obtained, or whether the quotations of prices were from actual sales, or otherwise. The credit to be given the paper must depend upon some such extrinsic proof; it cannot be determined by the publication itself. Whelan v. Lynch, 60 N. Y. 469. Tlie mere fact of publication is not enough. This publication was properly rejected as a piece of evidence.
The first, fourth and sixth points include the fundamental or meritorious question involved in this case. The trial court rightfully held, as we think, that the defendant was under no obligation to receive the first shipment, because of the fact that no samples had been furnished in advance, in accordance with the contract. The court further held that having failed to avail itself of that right, and having received the ship
The court ruled the damages recoverable by the plaintiff are the 1914 shipment, less the freight cost, which the defendant paid, amounting- to $339.69......’............. $2,969.73
Interest from October 1st, 1914, to October 26, 1918 .................................. 724.93
$3,694.66
For 1915-1918 installments; contract price, seventeen and one-half cents per pound, less six and one-quarter cents per pound of production, and cost of transportation one cent per
pound ................................ $7,995.00 Interest from October 1st, 1914, to October 28th,
1918 ................................. 1,951.65
. $9,946.65
Tire difference between the cost of executing the contract and the contract price furnished the means of estimating- such damages, Boyd v. Meighan, 48 N. J. L. 404, 407. The measure of damage is the difference between tlie contract price and the cost of performance.
This., we think, was sound and the rule to he applied to the facts of the case.
But it is urged the court improperly allowed interest on the amount estimated for the loss on the shipments of hops for the years 1915-1918, from October 1st, 1914, to the date of the rendering of the verdict, of $1,951.65. We think this point is well made and the trial court was. in error in allowing interest on these ¡shipments; interest ip not allowed on an unliquidated damage that is not capable of ascertainment by mere computation, for the reason that the person liable does not know what sum he owes; he cannot compute the interest, and therefore he is not in default for not paying (22 Cyc. 1512; 8 R. C. L., p. 533, ¶ 85), not on uncertain and unascertained damages. Speer v. Van Orden, 3 N. J. L. 652; Philbrick v. Mundy, 93 Id. 43.
The .judgment will not, however, be reversed for this error. If the plaintiff will waive this item of interest, viz., $1,-951.65, the judgment will be affirmed, without cost, on this appeal; otherwise it will he reversed, to the end that a new trial lie awarded as to damages alone. Philbrick v. Mundy, supra, approved and followed on this point; Young v. Society, &c., Church of Verona, 91 N. J. L. 310, distinguished.
For reversal—Swayze, White, Gardner, JJ. 3.
For modification—Ti-ib Chancellor, Chief Justice, Trenci-iard, Parker, Bergen, Minturn, Kalisch, Black, IIeppenheimer, Williams, Taylor, Ackerson, J J. 13.