36 Colo. 353 | Colo. | 1906
delivered the opinion of the court:
The court correctly instructed the jury that: '
“When a purchaser of personal property which by the terms of the purchase is to be delivered at a specified'time and place and at a stipulated price, refused to receive and pay for the property and no part of the purchase price has been paid, and if the price in the meantime declined, then in an action by the vendor against the vendee for refusing to comply with the contract, the proper rule of damages is the difference between the contract price and the current price at the time and place of delivery.”
According to the testimony of the plaintiffs, there was no current price for the goods in question at the place of delivery provided in the contract. Plaintiffs introduced proof as to the market price at Chicago, St. Louis and Kansas City, and that according to the prices prevailing at those places, plaintiffs should have recovered judgment for $765.57, as their testimony shows.
The testimony on behalf of defendant is that there was a market price at the place named in the contract and that the difference between the contract price of the goods and the current price at the place
The verdict of the jury was for $517.96 and l-3c. This verdict is not in harmony with the instruction and is not supported by any evidence. If the theory .of plaintiff should be taken, the verdict should have been $765.57. If that of the defendant should be taken, it should have been $352.50.
There being no evidence upon which the verdict can be sustained, the judgment based upon the verdict must be reversed. — Robeson v. Miller, 4 C. A. 313.
The judgment will be reversed and the cause remanded. „ _
Reversed.
Chief Justice Gabbert and Mr. Justice Goddard concur.