The opinion of the court was delivered *>y
Mr. Justioe McIyer.
This was an action to recover damages for breach of contract. The plaintiffs claim that on the 11th of September, 1886, through the brokers, Kracke & Janssen, mentioned in the complaint, they made a contract with defendants for the sale and delivery to them of ten car loads of oats, according to the sample then delivered to them, at the price of fifty-five cents per bushel; that the ten car loads of oats, corresponding with said sample, were forwarded to defendants in Charleston and tendered to them, who thereupon accepted and *514paid for three car loads, but refused to accept and pay for the other seven car loads; that on the 15th of September, 1886, plaintiffs-made another contract with defendants, through said brokers, for the sale of three car loads of oats, according to the sample furnished at the price of fifty-one and a half cents per bushel, and that said three car loads were forwarded to defendants in Charleston and tendered to them, who thereupon accepted and paid for one of the car loads, but refused to accept and pay for the other two car loads; that thereafter, on the 13th of October, 1886, the said nine car loads of oats, which had previously been rejected by defendants, were again tendered to them, and the defendants thereupon agreed to accept and pay for the same according to the terms of said contracts, but that notwithstanding such agreement, the defendants wholly neglected and refused to comply with the same; that in consequence of said refusal, on the 4th of December, 1886, after due notice to defendants and after due advertisement,' the said nine car loads of oats were sold at public auction, at the risk of defendants, for a sum much less than the contract price, and the plaintiffs claim, as their damages, the difference between said sum and the contract price, together with the expenses of sale and storage.
The defendants in their answer admit the contracts for the sale of the oats, the .tender of the same, the acceptance of a portion of each lot, and the refusal to accept and pay for the balance, which was done because they allege that the rejected car loads did not correspond with the samples furnished, but were much inferior in grade; but they deny the allegation that they had agreed, on the 13th of October, 1886, to accept and pay for the oats previously rejected, and they deny any knowledge or information sufficient to form a belief as to the allegations in reference to the sale of the rejected oats at public auction at their risk.
While there was a conflict of testimony as to some of the facts involved, which will be more specifically stated hereinafter, there seems to have been no dispute that the oats were duly shipped by plaintiffs and reached Charleston by rail in due course of transportation, when they were examined by defendants, and a portion thereof rejected as above stated, of which due notice was given to the said brokers; nor is there any dispute that after all *515negotiations for the settlement of the matter had failed, that the rejected oats, after due notice to defendants, and after advertisement in the public prints, were sold at public auction for the amount stated in the complaint, and that the difference between the amount realized at such sale, together with the costs and expenses, and the contract price are correctly stated in the complaint.
It seems that when plaintiffs learned that defendants had declined to accept a portion of the oats, 'they sent their confidential clerk or agent to Charleston to inquire into the matter, who reached that city on the 9th of October, 1886, but was unable to procure an interview with defendants until the 13th of that month. As to what occurred at that interview there is a direct conflict of testimony, the testimony on the part of the plaintiffs being that defendants then agreed to accept and pay for the oats according to the terms of the contracts, and that plaintiffs’ agent, relying upon that agreement, immediately left Charleston, understanding that the drafts drawn by plaintiffs on the defendants would be paid, on the next day ; but the testimony on the part of the defendants is directly the reverse, they denying that any such agreement was made, or any such understanding entered into. The plaintiffs being notified that the drafts were not paid, again sent their agent to Charleston, who, after remaining there some time engaged in a fruitless effort to settle the matter, had the oats advertised and sold as above stated.
The charge of his honor, Judge Fraser, before whom the case was tried, is very brief and seems to be set out fully in the “Case,” and should, together with defendants’ exceptions, be incorporated in the report of the case. The jury found a verdict in favor of the plaintiffs for the difference in the contract price of the oats and the amount realized at the auction sale, after deducting therefrom the expenses, and judgment having been entered, defendants appeal upon the several grounds set out in the record.
*5161 *515The charge of the Circuit Judge is very brief, comprehensive, and to the point: and, so far as we can perceive, is free from any just exception. There can be no doubt that, under the contracts, the making of which is admitted, the real question for the *516jury was whether the goods tendered came up to the samples by which they were sold ; and that was purely a question of fact for the jury. If they did, there can be no doubt that defendants were liable. We think there is as little doubt that, even if the goods did not in fact correspond with the sample, yet if the defendants accepted them, they would be liable for the contract price; for while the defendants would have had the right to reject the oats, if they did not substantially correspond with the samples by which they were sold, yet if they nevertheless chose to accept them, that would be a waiver of their right of rejection, and they would be bound to perform their contract to pay the stipulated price.. They certainly could not take the oats after they had discovered, as they say, that they did not come up to sample, at any less price than that stipulated for in the contracts ; for that would be allowing them to change one of the essential terms of the contracts, without the consent of the other contracting party. We say nothing here as to what would be the effect if the defect in the article sold was discovered after acceptance, for there is nothing in the testimony which would present the case in that aspect.
2 If the defendants were liable, the next inquiry would be as to the measure of damages, which the jury were instructed was the difference between the contract price and the amount for -which the oats were sold at auction, less the expenses of sale and storage. This was undoubtedly the correct measure of the damages, for that unquestionably represented the amount of the loss to which plaintiffs were subjected by reason of the failure of the defendants to comply with the contracts. If the contract had been fully performed, the plaintiffs would have been entitled to receive, and would have received, the amount of money which the oats at the contract price would have brought, and, of course, their loss is the difference between that amount and the amount which they actually received, to wit, the net proceeds of the sale at auction, after deducting the expenses of storage to which they had been subjected by reason of the failure of the defendants to perform their part of the contract. This seems to be in accordance with the well settled rule of law. Benj. Sales, § 788 ; Sands v. Taylor, 5 Johns., 395" court="N.Y. Sup. Ct." date_filed="1810-02-15" href="https://app.midpage.ai/document/sands--crump-v-taylor--lovett-5472547?utm_source=webapp" opinion_id="5472547">5 Johns., 395; Jackson *517v. Watts, 1 McCord, 288; Millar v. Hilliard & Wade, Cheves, 149; Stack v. Railroad Company, 10 S. C., 91. The general charge of the Circuit Judge was in conformity to these views, and all the rest of the charge was simply an adoption of the several requests to charge submitted by both parties, which in the main covered the foregoing principles.
3 In the exceptions complaint is made that the minds of the jury were diverted from the real issue in the case by what was said in relation to the 'acceptance of the oats by the defendants; and a good deal has been said in the argument as to the difference between the acceptance and actual receipt of an article alleged to have been sold in a case like this. Inasmuch as there was no pretence, and could not have been, that there was any invalidity in either of the contracts under the statute of frauds, both of the contracts having been in writing, we are at a loss to appreciate much that has been said upon the subject. If the effort had been to take the case out of the operation of the statute of frauds by showing that there had been both an acceptance and receipt of the goods alleged to have been sold, such remarks might have been quite pertinent. Here, however, there was no dispute as to the making or the validity of the contracts which lie at the foundation of this action, and the only question was whether such contracts had been performed; and, as we understand it, all that was said to the jury upon the subject of the acceptance by the defendants of the oats shipped to them by the plaintiffs was simply for the purpose of indicating to the jury that the acceptance of the oats, or a declaration to that effect, whereby the plaintiffs were misled to their prejudice, would be a circumstance to be considered in determining whether the defendants had not thereby admitted that the goods sold were up to the sample by which they were sold.
4 The exception to the measure of damages given to the jury by the Circuit Judge, in which it is contended that the defendants, even if they accepted the goods notwithstanding they were not up to sample, would only be liable for the difference between the market value of the goods so falling below' the sample, at the time of the acceptance, and the net amount realized by the sale at auction, cannot be sustained, not'only for *518the reason as above indicated that this would be allowing one of the parties to the contract to change one of its essential terms without the consent of the other; but also for the further reason that the defendants furnished no testimony for the application of such a measure of damages, as they offered no evidence as to the market value of such defective oats, as they claimed the rejected oats to be; and, on the contrary, by their objection to the seventh interrogatory propounded to R. J. Woods, which was sustained, they expressly admitted the correctness of the measure of damages applied by the Circuit Judge.
5 The only remaining inquiry is whether there was any error on the part of the Circuit Judge in instructing the jury that if they found for the plaintiffs, they would be entitled to interest on the amount fixed as the measure of the damages. That there was no error in this instruction may be seen by reference to the cases of Davies v. Executors of Richardson, 1 Bay, 102; Price ads. Justrobe, Harp., 111; and Wilson v. Railway Company, 16 S. C., 592, cited by counsel for respondents; to which may be added Blackwood & Brenan ads. Leman, Harp., 219; Wolf v. Sharp, 10 Rich., 64; and Kyle v. Laurens Railroad Company, 10 Id., 382. See also Goddard ads. Bulow, 1 Nott & McC., 45; Holmes v. Misroon, 1 Tr. Con. R., 21; Ancrum v. Slone, 2 Speer, 594, where the question in what cases interest is recoverable is fully discussed, and where the distinction between a finding of interest eo nomine and incorporating the interest in the aggregate sum of damages found, as seems to have been done in the present case, is discussed and recognized.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.