78 Pa. Super. 319 | Pa. Super. Ct. | 1922
Opinion by
Defendant (appellee), having contracted to sell and deliver to plaintiff (appellant), one-hundred tons of hydrate alumina per month, from March to December, 1916, inclusive, at four cents per pound, f. o. b. Natrona, Pa., in bags, refused to perform the contract, and this action for damages followed. The measure of damages in such circumstances is ordinarily the difference between the contract price and the market value at the time or times and place of delivery, with interest: Sales Act of 1915, P. L. 543, section 67 (3) p. 562; and where, as here, the contract is to be performed in installments, the damages for the breach must be measured as of the time when each installment was due: 17 Corpus Juris 850; 24 R. C. L. 72, 73 ; 2 Sedgwick on Damages (8th ed.), section 737, p. 430. The breach was “a continuing one, or a succession of breaches,” during the ten months in which the defendant was bound to deliver the hydrate alumina: Honesdale Ice Co. v. Lake Lodore Imp. Co., 232 Pa. 293, 301; and plaintiff was entitled to “recover the difference between the contract and the market price.
At the first trial of the case the plaintiff’s only proof of market value was evidence of the price for which he himself had contracted to resell twenty-five tons of the March delivery, and the prices at which defendant had supplied its other customers during the months in question. On appeal to the Supreme Court judgment for the plaintiff in substantial damages was reversed and a new trial granted, the court saying, through Mr. Justice ’Walling : “These sales [of the defendant] were individual transactions in comparatively small amounts, not at all corresponding to that here in question, nor shown to have been made in the open market, and not sufficient to establish the market value especially of such quantities. Hydrate alumina is manufactured at other chemical works, but there was no evidence as to the price for which it there sold, or as to its general selling price in open market.” After stating that the plaintiff had proved no actual damages and therefore the verdict could not be sustained upon that basis, if there were no available market, the opinion concluded: “In brief, unless the proof shows the subject of the contract had a market value and that greater than the contract price at the time of delivery, so as to bring the case within the general rule above stated the plaintiff can recover only nominal damages. The court erred in treating the evidence as sufficient to justify a finding of market value, and for that reason a new trial must be granted”: Seward v. Pa. Salt Mfg. Co., 266 Pa. 457. The Supreme Court did not say that the evidence received was inadmissible, but that it was not sufficient to justify a finding of market value. Accompanied by other and more comprehensive evidence on the subject, the whole might be
To supply the lack of proof referred to in the opinion, the plaintiff, on the second trial, offered to prove that no hydrate alumina was, or could be, imported into this country during the period of the contract; that it was manufactured and sold by only three concerns in this country, including the defendant, the other two being the Aluminum Company of America and Merrimac Chemical Company, the last named being the owner of the American patent and the others, licensees under it; that the Aluminum Company of America used practically its entire output for manufacturing aluminum in its own factories, selling less than one-half of one per cent of such output, and had refused to state whether it would have accepted an order of this size. He proved that Merrimac Chemical Company sold only ten per cent of its output, using the rest in its business, and offered to prove that he had submitted the contract to that company and it would not accept it for delivery in 1916. He offered to prove every sale made by all three of these concerns, and their respective prices, during the contract period, the largest of the defendant being for one hundred tons, deliverable over a period of six months (July to December, inclusive), in carload lots of twenty tons each, at seven cents per pound, f. o. b. Natrona,
The court below, under its construction of the Supreme Court’s ruling on the first trial, rejected the offers and refused to admit any evidence ás to sales unless
We are not able to put the same construction on the opinion of the Supreme Court as was adopted by the learned trial judge.
At the first trial, the plaintiff’s only evidence consisted of his own resale of twenty-five tons at five and one-half cents per pound and of single shipments under sales made by defendant. While competent evidence (Johnston v. Faxon, 52 N. E. 539-Mass.; Wilmoth v. Hamilton, 127 Fed. 48 C. C. A.), they were held insufficient of themselves to establish the market value of the quantity under contract, for it did not then appear that sales of approximately equal quantities to the contract in suit had not been made during the period covered by the contract by other producéis. This would have furnished more satisfactory evidence on which to base the opinions of persons versed in the trade and cognizant of market rates and conditions. But such opinions are always ultimately based on sales (Parmenter v. Fitzpatrick, 135 N. Y. 190, 196, 31 N. E. 1032, 1034; Sanford v. Peck, 63 Conn. 486, 493-4, 27 Atl. 1057, 1058), and when every sale of a commodity made by its producers during the period in question is shown to the jury, it would seem that they were fully capable of determining the actual or market value at wholesale of such commodity. After all, the jury are the ultimate judges of values (Laubaugh v. P. R. R., 28 Pa. Superior Ct. 247; Dana v. Fiedler, 12 N. Y. 40, 48, 49), and if they have before them all the data, from a portion of which experts make up their opinions as to values, they should be able to determine with reasonable accuracy the market value of a salable product on a given date. In Kountz v. Kirkpatrick, 72 Pa. 376, where it was alleged the selling price of oil had been artificially inflated, the Supreme Court said, p. 391: “If so, then such price was
When this case was first tried it was not brought out that the deliveries by the defendant to the Macbeth-Evans Glass Company were made under a sale agreement for one hundred tons, in carload lots of twenty tons each, hence the Supreme Court had no reference to such transaction when it used the expression, “comparatively small amounts.” When sales reach the dignity of carload lots, a jury might easily find that there was probably no great discrepancy between the price per pound of one carload or five, especially where the other
Defendant itself proved that there was an open market for hydrate alumina during the period of the breaches. Its witness, Havens, was permitted to state his opinion as to the market value, based upon inquiries in the market and upon two sales to his company in February, 1916, aggregating two hundred and forty tons. Why was not the purchasing agent of the Macbeth-Evans Glass Company who bought one hundred tons from the defendant early in 1916 and another one hundred tons in May, 1916, after securing quotations from other producers and making careful inquiry into the selling prices then current, competent to state his opinion on the general market price? The president of the Merrimac Chemical Company, called as a witness by plaintiff to furnish a list of all sales made by his company during the contract period — plainly an unfriendly witness from his volunteered statements and explanations — stated on cross-examination that the market price of hydrate alumina during the period, March to December, 1916, was 3y2 to 4 cents a pound, but admitted that prices on deliveries under an old contract extending to August, 1916, at $2.90 per hundred pounds had been raised to $5.35 after August, in shipments of seven to eight tons per month; and the offers would have shown that sales by his company in lots of five and one-half tons in November, 1916, were at eight and one-quarter cents a pound and of twelve and one-half tons in December, 1916, were as high as eleven cents a pound, with no sub
Ordinarily it is not possible to furnish evidence of every sale of a commodity made by all the producers or wholesalers in the country, and hence resort must be had to market reports and opinion evidence based on some of them; but when it is possible, when every sale during the contract period, — from a part of which expert witnesses for the defendant are able to testify as to market values, — is offered for the consideration of the jury, why is it not competent evidence, and why should the jury not be able from all of it to determine that which, the defendant’s witnesses have been able to deduce from a part? It must be remembered that these were not retail sales which were offered to fix wholesale values. They were sales of producers, — wholesalers,—offered as bearing upon wholesale values; and though none of them were in quantity equal to that under contract, some of them were not inconsiderable in amount and called for carload shipments extending over a period of months, and as to the rest, consideration could be given as to the difference in price, if any, between the large and smaller sales, and from them all a fair and accurate determination be made of the market value of a larger quantity deliverable at the rate of five carloads or one hundred tons a month. If it were otherwise a selling plunger could reáp all the results of a falling market and escape all the consequences of a rising one by contracting to sell a larger quantity of goods than any other dealer.
Our views are supported by the authorities hereinbefore cited and we believe they are in full consonance with
The third, fourth, fifth and ninth assignments of error are sustained. The judgment is reversed and a yenire facias de novo is awarded.