122 Ky. 808 | Ky. Ct. App. | 1906
OPINION op the Court by
Reversing.
Tiie appellee, Robert Tennelly, who is a furniture
The cause of action set up in the petition is for a breach of contract arising from the nondelivery of the goods alleged to have been purchased by appellee of appellant, and it is based upon the theory that, there having been a total failure on the part of appellant to comply with its contract by the 10th day of December, 1904, appellee was entirely released from his obligation to take the goods, and the property was treated by him as belonging to appellant, and the attachment sued- out as an ancillary remedy Was levied upon it as the property of appellant in order to secure such judgment as he might thereafter obtain. This being- true, appellee was in no wise interested in the question as to whether or not the goods were packed carefully, or were injured in the transit. He cannot, in the same breath, claim that the goods belonged to appellant, and that he is
Upon the trial of the case there was a total failure by appellee to show any fault on the part of appellant in the goods not being shipped from St. Louis in time to reach Owensboro for the Christmas holidays. There is no contrariety in the evidence that the goods were to be shipped by railroad, and appellant showed without contradiction that it placed an order wiith the railroad company on the day appellee purchased the goods, and each day thereafter until the shipment it urged the railroad company to furnish a car in which to' pack them, but owing, presumably, to a car shortage it was wholly unable to obtain a car prior to December 29, 1904, at which time the goods were shipped from St. Louis to Owensboro. There was considerable correspondence between the parties to this litigation concerning the delay in shipment, in which appellee camplained of the delay and urged shipment, and appellant, in reply, explained to him that the failure to forward the shipment was entirely due to the railroad company, and that it was. urging the carrier in every way possible to furnish the desired equipment; and on January 3, 1905, appellee wrote appellant a letter in which he urged it to ship his goods, and promised to pay cash upon arrival. This letter is as. follows:
But appellee’s, petition is fatally defective in its failure to allege in what his damages consisted. There is no allegation which tends to show how he was damaged and for all that appears he was in no worse condition by the failure to deliver the goods as purchased than if they had been all tendered. In the case of Miles v. Miller, 12 Bush, 134, it is said: “In. action for breach of contract, where no evil motives are attributed to the party and no features of aggravation are manifested, the measure- of damages is a question of law, and the law fixes and graduates the compensation to the actual loss sustained. Sedgwick on Measure of Damages, pages 200, 201. In declaring on contract, therefore, it is necessary to- state the contract, the breach, and the facts which' show the loss or damage sustained by reason of the breach.” And in the case of C., O. & S. W. R. R. Co. v. Cruger’s Adm’r, 7 Ky. Law Rep., 103, the superior court, speaking on a similar question, said:- “But if the failure to furnish the
The trial court did not err in refusing to instruct the jury that the criterion of damages was the difference between the contract price and the price at which the merchandise could have been purchased in St. Louis on tlie day of the alleged breach of contract. Appellee, in his petition, alleges that the goods were purchased for resale in Owensboro, and he so informed appellant at the time of the contract. The case of Campbellsville Lumber Company v. Bradlee & Wiggins, 96 Ky., 495, 16 Ky. Law Rep., 562, 29 S. W., 313, was an action for breach of contract in failing to deliver, certain lumber purchased, free on board cars at Campbellsville, Ky. In tlie opinion it is said: “The evidence in this case is entirely satisfactory that the seller knew the purchaser was a firm engaged in dealing in lumber in Boston, Mass., and that it was to be shipped direct to that place for resale. There was then at Camp-bellsville no market value on such lumber, in proper sense of that term, because defendant was alone engaged in manufacturing and selling; and, to measure the damages fully and fairly, inquiry of the price at a neighborhood market would have to be resorted to. ‘ But we see no reason for even thus restricting the investigation, much less the right of the court to do so, if the parties to the contract intended the damages should be measured by the difference between the contract price and that at the place of resale.” To the same purport is Denhard
Upon the return of tins case the parties should be allowed to .amend their pleadings, if they so desire, and if, upon another trial, the evidence is the same as upon the last, the instructions of the court will be made to conform to the principles herein enunciated.
The judgment is reversed for proceedings consistent herewith.