26 Ga. App. 394 | Ga. Ct. App. | 1921
1. Where the purchaser of goods seeks to recover of the seller damages for non-delivery, measured by the difference between the contract price and the price on a resale, he should both allege and prove that at the time of making the contract of the sale the seller had notice of such contract of resale. See Truitt v. Rust & Shelburne Sales Co., 25 Ga. App. 62 (102 S. E. 645).
2. Where the buyer in such a case fails to allege in his petition that the seller knew of the contract of resale, and no demurrer or motion to dismiss is interposed, the plaintiff has the right to prove his case as laid, but it is not error to repel all evidence tending to show such knowledge by the seller at the time of the sale. See Kelly v. Strouse, 116 Ga. 872(4) (43 S. E. 280).
3. In the absence of an appropriate allegation in the petition the court did not err in rejecting evidence as to expenses incurred by the buyer in purchasing other oranges to fulfill his contract of resale.
4. The petition contained no allegation that would warrant proof of the “usual custom of trade of the wholesaler purchasing oranges in carload lots to sell them in advance to the retail trade.”
5. There was no merit in any of the other exceptions as to the introduction of evidence.
6. The plaintiff having failed to prove any ascertainable damages, his petition was not proved as laid, and it was not error to grant a non-suit. Kelly v. Strouse, supra.
Judgment affirmed.