98 Kan. 62 | Kan. | 1916
The opinion of the court was delivered by
Early in 1909 the defendant, Lanter, received a shipment of three cars of lumber, ordered by him from the Cummings-Moberly Cypress Company, part of which consisted of 79,500 laths, at $4.40 a thousand. Various amounts had been paid upon the account with the cypress company, the last payment being $996.10 on June 23, 1909, and a balance of $355.80 was still due, which was assigned to the plaintiff, O. H. Johnston. Lanter’s defense was that the laths shipped were not No. 1 cypress, which the company had sold and agreed to ship. It appears that the laths came in bundles of fifty and were unloaded at the defendant’s lumber yard under his super
There have been three trials of this case, in each of which the verdict has been returned in favor of the defendant, and twice before the case has been reviewed in this court. (Johnston v. Lanter, 87 Kan. 32, 123 Pac. 719; Johnston v. Lanter,
The defendant complains of the action of the court in setting aside the general verdict in favor of the defendant. This was done because it did not conform with the special findings. The defendant had sold a part of the laths and had received the price of the same. Through the sale of the defective laths he had suffered damages in an amount stated by the jury. The plaintiff was entitled, therefore, to the value of the laths which defendant sold, less the damages which resulted to the defendant because of defects in the laths. The amount received by the defendant for the defective laths sold by him is not in dispute, and he certainly was not entitled to retain the laths and the money received for them. There is a complaint that he was not allowed a sufficient amount of damages, but the jury appear to have allowed all the damages arising from the defects that were proven. One who claims damages on account of a breach of contract must not only show the injury sustained, but must also show with reasonable certainty- the-, amount of damage suffered as a result of the injury. (Linotype Co. v. Printing Co., 61 Kan. 860, 59 Pad 1066.) The laths not sold belong to the plaintiff, and under the decision of the court he is entitled to the possession of them.
We think a just result was reached by the court, and its judgment is affirmed.