41 Pa. Super. 14 | Pa. Super. Ct. | 1909
Opinion by
The plaintiff recovered in the court below for certain postal cards sold and delivered to the defendant.
The defendant admitted in her affidavit of defense: “That the merchandise alleged in the plaintiff’s statement to have been received was received by the defendant at the request of the said defendant, the Shafer Book Store at Allentown on or about the dates mentioned in the plaintiff’s statement, and that the copies of the items of the books of original entries and the' prices affixed thereto as appears on the copy attached to the plaintiff’s statement are true and correct.”
The defense set forth in the affidavit of defense was a set-off against the amount claimed by the plaintiff’s statement by a loss of profits on certain postal cards sold by the plaintiff to the’ defendant, which were not delivered, and also for a violation of its contract with the defendant not to sell to any other person
The offer of sale by the plaintiff to the defendant included some 45,000 picture cards which the plaintiff alleged had been, or were being, manufactured for it in Germany and were to be delivered when they were received. There is no proof, however, that they ever were received by the plaintiff.
The court below rejected the offers of evidence of the defendant of prospective profits in the sale of the cards which they did not receive as a set-off to the price or value of the cjards which they did receive.
The assignments of error are three in number. The first two relate to the rejection of the offers of testimony and the third to the instructions to the jury “to bring in a verdict in favor of the plaintiff in the sum of $306.14.”
In the argument of the appellant, it is claimed that the contract between the plaintiff and defendant was but partially executed and that, inasmuch as it was an entire contract, the plaintiff cannot recover for a portion of the goods embraced in the contract. This position, however, was not taken in the court below. Neither in the affidavit of defense nor in the trial was this question referred to. And even if it had been, there seems to be, in the proposition of the plaintiff, a distinction between the cards on hand and those to be received later “ coming in, ” and, inasmuch as it is not shown in any way that the cards said to be “coming in” were ever received, it seems to us that there may have been a clear distinction between those on hand and those to be subsequently received, which would have negatived the idea of an entire contract. However, inasmuch as this question was not raised in the court below at the trial,
The testimony shows that, although there was a demand on the part of the customers of the defendant for the cards agreed to be purchased from the plaintiff which were not furnished, that demand was met by a subsequent purchase by the defendant in the market of a very much larger number of cards than were to be furnished by the plaintiff. Instead of paying a larger sum for the cards purchased in the- market, however, the defendant paid a much lower price, alleging that the cards purchased were not equal in quality to those agreed to be delivered by the plaintiff, but the difference in value is not stated, so that, even if the question of profits upon the prospective sales of the cards not delivered had been put in such positive shape as to be competent evidence, we do not think the testimony taken, as a whole, could have been submitted to the jury, so as to enable them to reach any definite conclusion as to the loss, if any, sustained by the defendant.
The offers of the defendant were very much of the same character, the second being rather more in detail than the first and being as follows: “ I propose to prove by the witness that they had bought these cards from the Rotograph Company, and, if the Rotograph Company had delivered all the cards that they had sold, and lived up to the contract, that the Shafer Book Store could and would have had a profit of $1.05 on each 100 cards so sold at retail and a profit of $2.50 on each 1,000 cards sold at wholesale. That about twenty-five per cent of these cards were sold at wholesale and the balance — seventy-five per cent — were sold at retail.” There was no offer to prove, however, that the demand for sales at wholesale and retail would
As stated in Kinports v. Breon, 193 Pa. 309, the general rule as to the measure of damages in such a case as the present is laid down as follows: “The measure of damages for the failure to deliver personal property sold is generally the difference between the contract price and the market price at the time of the breach: Fessler v. Love, 48 Pa. 407; McHose v. Fulmer, 73 Pa. 365; Arnold v. Blabon, 147 Pa. 372; Theiss v. Weiss, 166 Pa. 9. A different rule may be adopted where it appears from the terms of the contract or from the proof of circumstances that this measure would be inadequate or impossible of application.” See also Roberts & Co. v. Andrews Co., 15 Pa. Superior Ct. 305. “In actions for damages for breach of a contract, while it is not ordinarily necessary to prove the exact amount of loss to an absolute certainty, yet whenever substantial damages are claimed, their amount is the subject of proof and must be shown with reasonable certainty; and evidence, to be sufficient to authorize a recovery,’ must furnish some criterion or data whereby the jury may make rational deductions and calculations to determine the amount without danger of gross injustice or reliance on their own speculations or conjecture of the probable loss sustained:” 13 Cyc. 214.
The rejection of the defendant’s offer did no harm for the reason that, if everything-offered had been received in evidence, we cannot see how the testimony could have influenced the result, because the court would have been obliged to say at the end of the defendant’s testimony that no reliable data had been furnished from which the jury could have estimated the prof
Considering the whole case as presented, the opinion of the court below, in discharging the motion for a new trial, properly, as we view it, laid down the reasons for a refusal of the motion.
Judgment affirmed.