| Va. | Nov 14, 1918
delivered the opinion of the court.
The controlling facts of this case (omitting many matters of detail which appear to us to be inconsequential) are: That C. C. Hindman, trading as C. C. Hindman & Co., of Greenville, S. C., bought of the Harrisonburg Milling Company,'a partnership composed of J. D.' Manor, Blanch B. Manor, Marguerite L. Haywood and Shirley M. Sebrell,
One of the accepted rules ’ is, that the construction put upon such contracts by the parties themselves is accepted by the courts where it does no violence to the language used. In this case, by letters dated November 6, 13 and 24, the sellers emphasize the fact that all of the flour is to be ordered out by December 31, 1914, and that all not so ordered out would be cancelled. It was not, however, until the letter dated December 31, 1914, that the sellers claimed specifi
There were only two witnesses, the purchaser and J. B. Manor, acting for the sellers. They were both permitted to testify as to the proper meaning to be attached to the words “ordering out” the flour, according to the custom and usage of the trade. The purchaser testified that “ordering out” meant sending in specifications for the flour, and that he had until the 31st of December under his contracts to send in such specifications, while the witness for the sellers testified that it meant that the shipper of the flour was entitled to have the specifications in time to enable the mill to ship the flour on or before the 31st of December.
One test to be applied to this contract is to inquire what would have been the obligation of the purchaser in case he had not sent in any specifications on or before the 31st day of December. As to- this there can be no doubt whatever that he could not have taken advantage of his own failure to send in the specifications, and had the market price for flour depreciated so as to make it profitable to the sellers to require him to take all of the flour, he could have been held responsible to the sellers for the entire purchase price, and .his failure to send in specifications would not have relieved him from the obligations of his contracts. A case like that where the seller sued the purchaser who had failed to send in shipping directions within the time required by the contract is Louisville &c. R. Co. v. Diamond State Iron Co., 126 Ill. 294" court="Ill." date_filed="1888-11-15" href="https://app.midpage.ai/document/louisville-new-albany--chicago-railway-co-v-diamond-state-iron-co-6963854?utm_source=webapp" opinion_id="6963854">126 Ill. 294, 18 N. E. 735, in which the purchaser was held liable under his contract. A case quite similar to this is Tyers and others v. The Rosedale & Ferryhill Iron Co., Ltd., 10 Law Rep. Ex. 195, in which the purchaser sued the sellers. There the sellers contracted to sell 2,000 tons of iron to be delivered during 1871 or sooner, in equal monthly
So here it is doubtless true that if the sellers had claimed that their facilities were so limited that it was impossible to deliver 898 barrels of flour on the 30th and 31st of December, they should have been allowed a reasonable time in which to make-such delivery. Their claim that they had a right to time to manufacture the flour'is untenable. They had sold the flour under the circumstances mentioned, and it was their duty to have it ready for delivery whenever it was called for during the months of November and December. We may, we think, assume that there are standard packages of flour,.and that in accordance with the custom of the business manufacturers of flour in large quantities have these packages on hand ready to fill orders which they are under contract to fill, and that reasonable time in which to assort and ship these packages after the specifications are sent in, is all the time to which the seller is fairly entitled.
The trial court .permitted each of the witnesses to give to the jury his construction of the meaning of.the term “ordering out” and instructed the jury in accordance with that evidence. The jury found a verdict in favor of the pur
There were several exceptions as to the admission and rejection of testimony. It is sufficient to say, as to those, that they present no novel questions, and 'a discussion of the points raised would serve no good purpose. No testimony was admitted which the purchaser was not entitled to have considered by the jury, and none rejected which was tendered by the sellers which could have properly changed the result.
Much is said in the record as to one of the orders for 500 barrels of flour, referred to as the “Wright order.” It appears that the purchaser desired the sellers to book or sell 500 barrels of flour to D. C. Wright, Belton, S. C. The sellers at first refused to do so and there ensued correspondence by letter and telegram which is obscure in its meaning. There are clauses in the correspondence which support the contention that this flour was sold directly to Hindman, the appellee, as well as clauses indicating a sale to Wright, but the general tenor of the correspondence supports the contention of Hindman that the sellers refused to confirm any sale to Wright, and held him, Hindman, responsible as the purchaser of this 500 barrels of flour, saying in their letter of November 10th, “It was not up to us to confirm the sale to Wrightand the final confirmation of this view is found in the letter from Hindman, the purchaser, to the sellers of the 22nd of December, in which he directs 200 barrels of the flour to be applied to Wright’s contract, but shipped at once to the Blue Ridge Grocery Co., of Pelser, S. C. This letter was introduced by the sellers, and there is nothing in the record to indicate that they disclaimed the right of the purchaser thus to control and direct the disposition of this portion of the flour.
Complaint is made that the purchaser was allowed to testify as to his loss because of the sellers’ failure to supply the flour which he was under obligation to supply to his customers under contracts which he made on the faith of his contracts with the sellers. The rule in such case appears to be perfectly well settled, and is thus stated in 2 Mechem on Sales;
“Sec. 1763. If, however, at the time the contract is made, the seller has such notice or knowledge that the goods are being purchased for resale in a particular market, or to be supplied in pursuance of a particular contract, that he may fairly and reasonably be deemed to have made his contract in contemplation of that purpose, and to have assumed the risks thereby entailed, then, if he breaks his contract, damages for losses caused thereby, if not uncertain or remote, may be recovered.” Citing many authorities.
“Sec. 1765. It is sometimes objected that a loss of profits is not a proper subject of compensation, and this is often true. It is not, however, because profits in themselves may not, if lost, be properly made the basis of a recovery, but because in most cases in which such a claim is made the profits in question were too speculative, uncertain or remote to be considered. Where, on the other hand, the loss of profits can be shown with reasonable certainty, it has been settled, since the case of Masterton v. Mayor of Brook*775 lyn, 7 Hill (N. Y.) 61, 42 Am. Dec. 38, that a; recovery may be had for the amounts so lost.”
The buyer in such circumstances, who has made a subcontract, is entitled to obtain and supply the article which his vendor has failed to furnish under his contract, and if he is compelled to pay a higher price for the substitute thus procured, he may recover as damages the difference between what he was to pay for the original article and what he is thus compelled to pay for the substitute. 2 Mechem on Sales, sec. 1768.
No evidence in contravention of this rule was admitted by the* trial court. 1
Exception is taken because the jury reports a verdict written upon a piece of paper in the following words: “We, the jury, find for the plaintiff and fix the damages due by the defendant to be twelve hundred dollars:” whereupon the verdict was in open court written upon the declaration and signed by the foreman in these words: “We, the jury, find for the plaintiff on the issues joined, and fix his damages at twelve hundred dollars.” It is the duty of the trial courts to require the verdicts of juries to be put in approved form in order to effectuate their true intent and meaning, and hence there is no merit in this exception. Indeed, if the verdict as originally drawn had been accepted by the court, the same result would have followed, for it would have been considered as responsive to the issue which the jury had been sworn to try.
The action was originally instituted against J. D. Manor, trading under the name of Harrisonburg Milling Company and J. D. Manor and Company. At the next term J. D. Manor filed a suggestion that the Harrisonburg Milling Company was a partnership composed of himself, Blanch B. Manor, Marguerite L. Haywood and Shirley M. Sebrell, and by 'consent the case was remanded to rules and process directed to issue, and no further allusion appears to J. D.
After the jury had been discharged, the purchaser moved to set aside the verdict upon the ground of misconduct on the part of the jury, and filed an affidavit of .one of the jurors to the effect that the jury made an agreement among themselves that each should set down the amount to which he considered the plaintiff entitled to a verdict, and the sum of these amounts should be divided by the number of jurors and the result thus secured should be the verdict to which all would assent and agree, and that this plan was carried out by the jury, and the verdict rendered in the case was arrived at by this plan. This is supported by an affidavit of M. L. Walton, Jr., to the effect that in looking over the papers in the action he observed the following figures written on the papers of the said suit: 7—8400
1200.
It has long been settled in Virginia that such affidavits are received with great caution, and only in exceptional
The case presents difficulty, but the controversy has been submitted and determined in the method prescribed by law, and we find no reversible error in the proceedings.
Amended and Affirmed.