157 Ga. 52 | Ga. | 1923
(After stating the foregoing facts.) Exceptions filed both to the overruling of the demurrer to the petition and to the charge of the court set out in the amended motion for .a new trial raise the single question for determination by this court as to the rule for the measure of damages under the facts of this case. The general rule is that the measure of damages recoverable of a seller for failure to deliver goods sold is the difference between the contract price and the market price at the time and place for delivery
It is contended that the correspondence between the plaintiff and the defendant with reference to the delay in shipment carried forward the date of delivery as fixed by the contract to a future date, and that the plaintiff’s measure of damages would be the difference between the contract price and the market price at the date on which the defendant repudiated the contract, on the substituted extension of time for delivery. The court instructed the jury as follows: “But I instruct you further, if you find, at the time specified in the contract for the delivery of these goods, that, by certain correspondence between the plaintiff and defendant, the time of the delivery was extended from time to time, and that this extension amounted to a mutual agreement between the plaintiff and the defendant to extend the time from time to time in order to aid the defendant in making delivery as contracted, if they mutually agreed to it, then I charge'you that the breach would occur whenever the defendant in this case, if it ever did from the evidence, finally breached the contract and refused to deliver the goods ■ or comply therewith; and you will look in this cáse and see whether there was an extension of time by reason of correspondence such as I have explained to you, and when the breach occurred, if it did occur; and if you find a breach did occur later on, then I charge you the measure of damages in that event would be the difference in the contract price and the market price at the time and place of delivery at the time of the actual breach of the contract, whatever time you may find that to be. In that connection I charge you where a party contracts to deliver goods at a particular time and place, and no payment has been made, the true measure of damages is the difference between the contract price and that of like goods at the time and place where they should have been delivered.” The exceptions to the charge were:
It is contended by the plaintiff that while these contracts, which are set out in the evidence, specified a certain date for the delivery of'the “headings,” by mutual consent of both parties, as shown by the correspondence set out in the record, the time of delivery was
Judgment affirmed.