Terry v. Parsons

30 Del. 90 | Del. Super. Ct. | 1918

Rice, J.,

after stating the facts as above, charged the jury:

[1] The plaintiff’s action is based on a breach of an alleged contract, and for him to recover it is a burden on the plaintiff to prove to your satisfaction by a preponderance of evidence that there existed between the plaintiff and the defendants a contract as alleged by him, that there was a breach of the contract on the part of the defendants and the plaintiff was damaged thereby.

[2] A contract is an agreement for a valuable consideration to do or not to do a particular thing, and it may be express or implied and an express contract may be written or oral.

[3] A promise on the part of William H. Parsons, representing the firm of M. J. Parsons and Sons, to sell and deliver a certain number of carriers in a given time at a fixed price per carrier to the plaintiff, and a promise on the part of Charles L. Terry, the plaintiff, to accept and pay for the same would constitute a contract equally binding on the plaintiff and the defendant firm whether the agreement between the parties should be oral or written.

[4] If you should find from the evidence that there was not a contract between the plaintiff and the defendants, as alleged by the plaintiff, then your verdict should be for the defendants for if there was no contract between the parties, there could not be a breach on the part of the defendants.

If on the other hand you should find from the evidence the existence of the contract as alleged by the plaintiff, then you must consider and determine whether there was a breach of the alleged contract on the part of the defendant and a loss to the plaintiff by reason thereof.

[5] If you believe the agreement was made as testified to by the plaintiff, you should return a verdict for the plaintiff covering the loss which the evidence shows was sustained by him because of the defendants’ breach, if any, of said agreement which loss would be any decrease in the price of the peaches because of their being overripe; any decrease in the price of the peaches because they had to be shipped in secondhand carriers; any decrease in the price of peaches that had to be shipped in baskets, and the value of those wholly lost, and any extra expenses the plaintiff was put to for labor and teams caused by the delay in picking, packing and hauling the peaches.

Verdict for plaintiff.