Faulkner v. Closter, 79 Iowa 15

Faulkner v. Closter

79 Iowa 15

Iowa

1890

Check Treatment

Granger, J.

Defendant engaged to deliver “on. track,” at Kirkman, a carload of potatoes, of not less than four hundred bushels. There was a failure to deliver, and this action is to recover the damages.

i. sales : failure measured damages. I. The first error assigned and argued is as to the admission of evidence as-to the value of the potatoes. There seems to be no dispute as to the rule °f damages in such cases, — that is, that the difference between the contract and market prices at the place of delivery is the true rule, but the controverted point is as to the method of -ascertaining that difference. Appellant’s contention was below, and is in this court, that the inquiry should have been confined to the price of potatoes at Kirkman, when offered or sold in lots of four hundred bushels, or carload lots. The district court took a different view of the law, and allowed the witnesses to testify as to the market price at Kirkman, without reference to the amounts of the different sales. Of this appellant complains. The ruling of the court is right. The authorities cited by appellant (Marsh v. McPherson, 105 U. S. 709; 5 Wait, Act. & Def. 623; and Benj. Sales, sec. 1333) do not sustain the rule that the evidence must be as to like sales in amount, but what will be the necessary cost of procuring the same amount in the market; and it is not a matter of substantial importance whether the supply is obtained from one or repeated purchases.

2. appeal: re-nominal1 damages. II. The contract price for the potatoes was thirty cents per bushel for mixed varieties, and thirty-five cents for straight varieties. There was testimony to the effect that potatoes of the kind could be bought in the market for from twenty to twenty-five cents per bushel; and, under the testimony, the jury returned a verdict for defendant. Complaint is made of the instructions of the court, wherein it failed to instruct that, inasmuch as there was a breach of the contract, the plaintiff was entitled to nominal damages. If we concede the error as claimed by appellant, still we cannot reverse the judgment. *17Under the finding of the jury, there was no substantial ground for complaint by plaintiff. There was a technical breach of undertaking to deliver, but without damage to the plaintiff. This court has repeatedly said it will not reverse a judgment for that reason. Watson v. Moeller, 63 Iowa, 161; Watson v. Van Meter, 43 Iowa, 76; Case Threshing Mach. Co. v. Haven, 65 Iowa, 359.

III. The remaining point in argument, that the verdict is contrary to the law and the evidence, is controlled by our views as to the admission of testimony in the first division of the opinion. We see no reversible error, and the judgment is Aeeirmed.