Moffett-West Drug Co. v. Byrd

(after stating the facts ). The appe lant has filed eight specifications of error, which are as fo lows, to wit: “(1) The court erred in permitting Byrd i prove special damages by testifying that he had mac special preparation to receive this bill of goods, and go ini the drug business by erecting a building at Chelsea. (l In permitting Byrd to prove special damages by testifyir that a part of his especial preparation to receive tke,c goods consisted in hiring Dr. Matthews, and what he pa: *617him. (3) In permitting Byrd to prove special damages by testifying that part of his special damages consisted in nine days’ loss of individual time, preparing for and awaiting the arrival of these goods. (4) In admitting certain testimony. (5) In permitting plaintiff to read to the jury Exhibits C, E, and F-l to W. G-. Sludder’s deposition, and overruling defendant’s motion to suppress the same. (6) In refusing to instruct peremptorily for defendant on the evidence. (7) In refusing to give defendant’s instruction ( No. 2 ), which is as follows: ‘ If you find that there existed between plaintiff and defendant a contract, then the burden of proof is upon the plaintiff to show by a fair preponderence of the evidence a breach of said contract by defendant refusing or neglecting to comply with the terms thereof, and to show what damage, if any, he sustained by reason of said breach; and, until plaintiff has shown the contract and its breach, he is not entitled to recover the $100 paid on the contract or any other amount. ’ (8) In modifying instruction No. 2 so as to read: ‘If you find that there existed between plaintiff and defendant a contract, then the burden of proof is upon the plaintiff to show by a fair preponderance of the evidence a breach of said contract by defendant refusing or neglecting'to comply with the terms thereof, and to show what damage, if any, he sustained by reason of said breach ; and, until plaintiff has shown a contract and its breach, he is only entitled to recover the $100 paid on the contract; but, if the contract and a breach are shown, the plaintiff is entitled to recover, in addition thereto, such other amount of damages as you may find from the evidence he. has- sustained.’ ”

So far as the first specification of error is concerned, it is sufficient answer to say that no exception was reserved r to the admission of the testimony, but, if there had been, no sum whatever was proven as an item of damages in that respect.

It is contended by appellant that no allegation of special damage in his complaint covered the items mentioned in specifications of error 2 and 4 ; but he concedes that the loss of the individual time of plahrtiff is alleged as special damages in specification No. 3. The allegation in the complaint is ‘ ‘ loss of time occasioned by the defendant's failure to comply with the said agreement. ” This allegation could cover the time of Dr. Matthews, as well as plaintiff’s individual time, and also plaintiff’s time on his trip to Yinita, to which specifications of error Nos. 2, 3, and 4 refer. But appellant argues that all such damages are too remote even had they been specially alleged. We cannot concur in this view. The court was particularly careful to limit the time to a period between the 6th day of May and the 20th day of May, it being the time that elapsed between the arrival of the goods at Chelsea and the instituting of this action. These items of damage, though small in amount, were the. natural and proximate result of the shipment of the goods under the contract of purchase, and their arrival at destination, where plaintiff was to receive them.

Specification of error No. 5 goes to the refusal of the court to suppress Exhibits C, E, and P-1 to W. G. Sludder’s deposition. This was a. deposition taken by appellant itself of a trusted employe, known as its “credit man,’’tobe used on the trial of this cause. This was wholly in the discretion of the court, and if, in the opinion of the court, these exhibits threw light upon this transaction, it was not only in his discretion, but eminently proper that he should admit them.

Specification of error No. 6 need not be considered. That there was evidence of damage that properly went to I the jury there can be no question. There was evidence that was properly admitted showing the difference between the contract price in St. Louis and the market value at Chelsea, *619End. Ter., at time of delivery, which would account for almost all the damage found by the jury in their verdict; and the question whether there was a contract existing between the parties and a breach of the same was fully and fairly submitted to the jury by the court.

The seventh and eighth specifications of error can very properly be considered together. They relate to the refusal of the court to give instruction No. 2 as requested by appellant, and the giving of the same in a modified form. The court gave the following, as requested by appellant’s request No. 2: “If you find that there existed between plaintiff! and defendant a contract, then the burden of proof is upon the plaintiff to show by a fair preponderance of the evidence a breach of said contract by defendant refusing or neglecting to comply with the terms thereof, and to show what damage, if any, he sustained by reason of said breach ; and, until plaintiff has shown a contract and its breach, he is ” — and refused to give the following words at the close of appellant’s request No. 2, to wit, “not entitled to recover the $100 paid on the contract or any other amount, ” and in place of them substituted the following words, to wit, “only entitled to recovered the $100 paid on the contract, but if the contract and a breach are shown, the plaintiff is entitled to recover, in addition thereto, such other amount of damages as you may find from the evidence he has sustained. ’ ’ On page 39 of the transcript, during the examination of the appellee, appears the following:. ‘1 Counsel for the defendants offer to confess judgment for the one hun-Ired dollars, which offer plaintiff, by his counsel, refused to accept. The court:. The records will show that the plaintiff has made a claim for this $100, and, if they should sue for it hereafter, this suit will be a bar to the other suit.’’ This action of the court, which is fully authorized by the Liberal statute of amendments of Arkansas, and now in force In this territory, amounted to an amendment to plaintiff’s *620complaint, and justifies the charge of the court as made in giving plaintiff’s request No. 2 as modified. It is perfectly evident from an examination of the letter of Mr. Mittong to the appellant when the order for these goods was sent in to it that both he and the appellee had come to a full understanding in regard to the purchase of these goods and terms of payment; and, had appellant fully advised its counsel of that correspondence, it is very questionable if this suit would ever have been necessitated ; but when they acted upon the order, and shipped the goods, and then commenced their objections to the security agreed upon, we think the appellee was justified in the conclusion that appellant did not intend to carry out the contract. The terms of the contract should have been settled before the goods were shipped, if appellant did not propose to accept it. We are of the opinion from an examination of all the evidence that substantial justice has been done, and therefore the judgment below is confirmed.