57 Ark. 203 | Ark. | 1893
1. The court erred in admitting evidence to show the loss of profits in the business of the plaintiff company, resulting from a breach of the alleged contract, and to show the expenses of Rutherford, the company’s vice president, in visiting St. Louis and Chicago, for the purpose of obtaining a machine in lieu of the one the defendants refused to deliver. Such losses and expenses were too remote and speculative to constitute elements of the plaintiff’s damages. Kempner v. Cohn, 47 Ark. 527; Holliday v. Cohen, 34 Ark. 710; St. Louis etc. Railway v. Mudford, 48 Ark. 502, 510; Blass v. Lee, 55 Ark. 331.
2. The error thus committed was in effect repeated by giving to the jury the plaintiff’s third instruction; and that part of the charge was not rendered harmless by giving the defendant’s fifth, request. The latter stated the rule of damages applicable to the case ; but the jury were left free to take as their guide the erroneous instruction, and we cannot say from the verdict that they did not do so. Selden v. State, 55 Ark. 393.
It is argued however that damages, amounting to $650, were recoverable because in buying the “Woods machine,” to supply the place of the No. 5 planer ordered from defendants, the plaintiff expended that sum in addition to the amount agreed to be paid in money on the price of the No. 5 machine. But this additional outlay of money could only be treated as a difference between the prices of the two machines, on the assumption that the joiner, which it is claimed the defendants ag'reed to receive in part payment at the price of $700, was in fact of no value at all; and that assumption is wholly unwarranted by the evidence adduced by the plaintiff. Rutherford in testifying was asked to state its value, and answered by merely saying- that Hooper, the company’s agent, estimated its value at $700. If such was its value, as it remained the property of the company, the latter sustained no damage by the defendants’ failure to perform the agreement; for, as we understand the testimony, the Wood’s machine did all the work that was expected of the No. 5. We do not presume that the estimated value of the joiner was its real value. But it is admitted that the plaintiff continued to use the joiner for about five months after the defendants refused to take it; and this shows that, whether it had a market value or not, it was not without some value to the plaintiff. If the sum representing- its value at the time the plaintiff was notified that the No. 5 planer would not be shipped, was less than the sum of $650, then the difference between the two will show the actual damage sustained by the plaintiff. But, on the proof made as to the value of the joiner, we are unable to say that such was probably the measure of damag'es adopted by the jury.
3. One of the assignments of error questions the correctness of the court’s ruling in giving the first instruction requested by the plaintiff. The substance of that instruction was that if the defendants permitted Hooper to hold himself out to the plaintiff as their agent in selling and negotiating trades concerning machinery, then they are bound by his acts as such agent. The objection made to the charge is that it was abstract. But we think there was evidence tending- to prove the fact the instruction assumes, and nothing more was required to justify the court in giving it. 2 Kent’s Com. 12th ed. 615; Thurber v. Anderson, 88 Ill. 167.
For the errors we have desig-nated, the judgment will be reversed, and the cause remanded for a new trial.