279 Pa. 440 | Pa. | 1924
Opinion by
There are two questions to be determined on this appeal by defendant, whether the charge of the court on the question of damages was adequate and whether the exception taken to that portion of the charge by appellant affords a sufficient basis for review.
The action was assumpsit for silk sold and delivered and for damages for breach of contract by failure of defendant to accept and pay for the remainder of the silk alleged to have been purchased.
In the disposition we shall make of the case, many of the facts connected with the transaction need not be outlined. It is sufficient to recite that the alleged contract was not in writing, that plaintiff claimed it was entered into, and affirmed by acceptance of part of the material, whereas defendant denied its existence entirely.
In measuring the damages for breach, if the jury concluded, as they did, that a contract had been made and broken, it then became very important that they should be carefully instructed as to finding the date of the breach because of the wide difference in market value of the commodity at the different times when a breach might be found to have taken place.
During the first two weeks in April, plaintiff made certain shipments of silk to defendant and upon their
In instructing the jury, the trial judge so charged them that they must undoubtedly have concluded the contract was broken either in December, shortly after it was said to have been made, or in August, for he said nothing to them at all which would have brought to their attention that the breach might have been in April. From the evidence, they could have found it occurred then, and if they had, the damages would have been greatly lessened. Under the circumstances, we conclude this was error. In cases such as this, where the defense is non assumpsit, as in trespass cases where there is a denial of liability, it is very important for the court fully and adequately to charge on the question of damages (Shimer v. Penn Electric Smelting Co., 273 Pa. 467, 474; Burns v. Penna. R. R. Co., 233 Pa. 304, 310; Hockenberry v. New Castle Electric Co., 251 Pa. 394; Gerber v. Phila., 60 Pa. Superior Ct. 119 (Kephart, J.); 17 Corpus Juris 1061, 1062) and do so without direct suggestion from the defendant, who, denying the basis of liability, would prejudice his real defense by a direct request for instructions on the measure of damages, as he would in effect say “I am not liable but if I am then I am answeráble for only so much.” Such an attitude would give the ordinary jury the impression of a confession of liability.
The second and third assignments of error are sustained and a new trial ordered.