54 S.E. 202 | S.C. | 1906
April 16, 1906. The opinion of the Court was delivered by The complaint in this case was for the price of a lot of flour sold and delivered by plaintiffs to defendants, and the main defense in the answer was damages for breach of warranty as to the quality of the flour. The trial resulted in a verdict and judgment for plaintiff for $385, the sum demanded.
The crucial question presented by defendants' exceptions is whether the Circuit Court correctly instructed the jury as to the rule or measure of damages applicable to the defense set up by defendants. The Court charged in substance that if the defendants sold the flour for more than they had paid for it, they were not damages and could not recover damages and have abatement in the price for any defect in the quality of the flour. Under this instruction the jury could not do otherwise than bring in a verdict for plaintiff, as defendants admitted that they had sold the flour at a profit of about twenty-five cents per barrel.
The testimony in behalf of the defendants tended to show that in December, 1903, defendants purchased of plaintiffs four hundred barrels of flour, manufactured by Ballard Ballard Co., consisting of three brands, Obelisk, Bicycle and Waterloo, of standard quality, such as defendants had previously used in their business as merchants, to be shipped, and at prices, as follows: 100 barrels on January 1, 1904, and 100 barrels on January 15, 1904, Obelisk at $5, Bicycle at $4.45 and Waterloo at $4.15 per barrel; 100 barrels on February 15, 1904, and 100 barrels on March 15, 1904, at an advance of five cents per barrel. The quantity of flour *204 was delivered as contracted for. The first and second shipments were paid for by defendants without any question being made as to quality. When draft was made for the third shipment, defendants complained of the quality. Defendants' customers had been complaining of the flour and the testimony tended to show that the flour was dark and of poor cooking quality — in fact, the plaintiffs admitted that the flour was defective and were willing to allow some deduction. The defendant Brock testified that plaintiffs told him to go ahead and pay the draft for the third shipment and that his claim could be adjusted out of the fourth and last shipment. The present suit is for the price of the last shipment of 100 barrels, less freight. The testimony in behalf of defendants showed that immediately after the purchase in December, 1903, flour began to advance in price and continued to advance for some time, that by January 1, 1904, flour had advanced twenty or twenty-five cents per barrel, and by the time of the last shipment in March, 1904, flour had advanced seventy-five cents per barrel, and that by reason of this advance in price defendants were enabled to dispose of the flour at a profit of twenty-five cents per barrel, but that they lost the advance in the market price.
It is manifest that the loss claimed by defendants does not fall under the class of expected or anticipated profits that are contingent, speculative and remote and, therefore, not recoverable, as in Sitton v. McDonald,
The Circuit Judge in charging the jury misconceived the effect of the cases of Kauffman v. Stuckey,
These views must result in a new trial for misdirection of the jury. We do not deem it important to consider further the exceptions of the defendant.
The plaintiff demurred to an answer for insufficiency at a former term, when the case was called before special Judge Ernest Moore, and Judge Moore overruled the demurrer on *207 the ground that defendants, on the facts stated in the answer, "were entitled to credit or damages to the extent that the flour shipped failed to come up to standard of that contracted for at the time of the delivery." Judge Moore's ruling was in strict accord with the views herein announced and plaintiffs' exceptions thereto cannot be sustained.
The judgment of the Circuit Court is reversed, and the case remanded for a new trial.