88 S.E. 630 | N.C. | 1916
Civil action to recover damages for negligent failure to deliver a telegraphic message. *467
There was evidence on part of plaintiff tending to show that plaintiff firm were retail grocers doing a general business of that kind in the city of Winston, N.C. and Phillips Co., were wholesale produce dealers, doing business in Norfolk, Va.; that plaintiffs at this time were handling in their trade on an average of two to three car-loads of cabbage every week, in May about 300 crates, much of it ordered from Phillips Co., all of it being ordered by telegraph through defendant company; that on Monday, 1 June, 1914, plaintiff filed with defendant for immediate transmission a message to said Phillips Co., in terms as follows:
Ship today 150 crates of fancy cabbage; same price or less.
GARDNER CLARK.
Plaintiff had ordered a car-load of this cabbage from these same dealers on 29 May, and had paid therefor $1 per crate; that at the hour the message was sent, and should have been received, cabbage had declined to 90 cents per crate; that a car-load of cabbage shipped out of Norfolk on Monday was due to arrive in Winston on Wednesday; that, in expectation of receiving the cabbage on Wednesday; plaintiffs took orders from their trade and had sold out the entire 150 crates to their customers at $2 per crate; that defendant company failed to deliver the message and, by reason of such failure, the sales booked by plaintiffs were not carried out, to plaintiff's damage as indicated.
There was proof offered, also, that Phillips Co. were in a position to immediately fill the order, and would have done so in time for Wednesday deliveries if the message had been properly transmitted and delivered.
The court held that in no aspect of the evidence were plaintiffs entitled to recover the loss of profits on this order, and that on the issue as to damages plaintiffs were confined to the price of the message and the cost of placing the orders for selling same.
On issues submitted there was verdict of negligent failure to deliver the message and, under the charge of the court, assessing the damages at $13.25, this being the price of the message and the (407) estimated cost of employees in placing the orders.
Judgment on the verdict, and defendant excepted and appealed, assigning for error the ruling of the court as noted.
After stating the facts: A telegraph company sued for breach of contract for failure to properly transmit and deliver a *468
commercial message may be held liable as in other cases, on breach established, for such damages as were in reasonable contemplation of the parties and which are capable of ascertainment with a reasonable degree of certainty. Williamson v. Tel. Co.,
On the question of recovery of profits, as an incident of damages in these and like instances, the cases further hold that when goods are bought for resale in a certain market, and this fact is known to the vendee at the time of contract entered into, the profits may be ascertained by reference to prices prevailing in such market. Lewis v. Rountree,
In Hardware Co. v. Buggy Co., on wrongful failure to deliver a carload of buggies sold to plaintiffs, ordered for their trade in spring of 1913, numbering 30 buggies, on proof that the entire car-load could have been readily disposed of at a profit of $15 per vehicle, the evidence was held relevant on the issue as to damages. Speaking to the principle, the Court said: "It is sometimes said that loss of profits to arise from a good bargain may not be considered in estimating the damages from breach of an executory contract; but, on examination, the position will be found to obtain only where, in a given instance, from the uncertainties of trade, the fluctuations of prices, or the like, these anticipated profits present too many elements of uncertainty to be made the basis of a satisfactory business adjustment. This, however, is not because they are profits, but by reason of their uncertainty; and where it appears that such profits were in reasonable contemplation of the parties, and the contract and evidence relevant to the inquiry afford data from which the amount may be ascertained with a reasonable degree of certainty, the profits to arise from a good bargain may be recovered." The opinion further quotes with approval from Hale on Damages as follows: "A difficulty arises, however, when compensation is claimed for prospective losses in the nature of gains prevented; but absolute certainty (409) is not required. Compensation may be recovered when they are such as in the nature of things are reasonably certain to ensure. Reasonable means reasonable probably. When the losses claimed are contingent, speculative, or merely possible, they cannot be allowed." Hale on Damages, pp. 70-71.
In the present case there are facts in evidence tending to show that plaintiff, retail grocer, doing business in the city of Winston, on Monday, 1 June, ordered from Phillips Co., general produce dealers in Norfolk, *470
On this evidence, we think that the question of compensatory damages, including the loss of profits, should be submitted to the jury, and, if the facts as claimed by plaintiffs are accepted by them, plaintiffs are entitled to recover for the loss of profits as evidenced by the resale made by them according to their usual methods of dealing. Assuredly so unless there was evidence offered tending to show that, owing to exceptional circumstances, the prices obtained on resale were out of the expected and ordinary, in which case the difference between the cost and charges paid for cabbage and the value in the retail market in Winston would more properly be the rule.
The cases to which we were referred by counsel for appellee, notably,Newsome v. Tel. Co.,
There was error in the rule for awarding the damages adopted by his Honor, and plaintiff is entitled to a new trial of the cause.
New trial.
Cited: Nance v. Telegraph Co.,
(410)