Grand Rapids Show Case Co. v. Earle Rogers Co.
| Decision Date | 25 January 1927 |
| Docket Number | 5726. |
| Citation | 136 S.E. 602,103 W.Va. 64 |
| Parties | GRAND RAPIDS SHOW CASE CO. v. EARLE ROGERS CO. |
| Court | West Virginia Supreme Court |
Submitted January 18, 1927.
Syllabus by the Court.
In case a purchaser desires to retain an article ordered which does not conform exactly to the color of the sample shown him by the seller, and it is practicable to remedy that difference he may charge against the purchase price the reasonable cost of bringing the article to the color of the sample.
Where no proper measure of damages is proven, the jury should not be instructed to allow damages.
Where the color of store fixtures is the only issue in a case, a view of the fixtures by the jury should be granted, if it be practicable.
Error to Circuit Court, Ohio County.
Motion by the Grand Rapids Show Case Company for judgment against the Earle Rogers Company to recover the balance on the purchase price of store fixtures. Verdict was for plaintiff for less than it asked. Plaintiff's motion to set the verdict aside was overruled, and it brings error. Reversed, and a new trial awarded.
W. L Bradshaw and William F. Simpson, both of Wheeling, for plaintiff in error.
Nesbitt Goodwin & Nesbitt, of Wheeling, for defendant in error.
HATCHER P.
A motion for judgment was made on September 27, 1924, in the circuit court of Ohio county, by the Grand Rapids Show Case Company against the Earle Rogers Company, a corporation, to recover the balance on the purchase price of certain store fixtures, which amounted on that date to $814.48. The Rogers Company claimed recoupment in the sum of $500. The jury returned a verdict in favor of plaintiff for $422.85. The plaintiff moved that the verdict be set aside, but the motion was overruled.
On January 24, 1924, the defendant gave T. H. Wills, a salesman for the plaintiff, an order for certain fixtures to be finished in the color of a sample known as "No. 56 wax." When the fixtures came, they were somewhat lighter than the sample. Wills admitted the difference in color, and, according to his testimony, told defendant:
"If your fixtures are not 'No. 56 wax,' we will replace; otherwise we will see how we can adjust them to bring them to the shade that you have in mind."
Wills also testified that the goods were delivered in "No. 56 wax"; that the sample shown defendant had darkened from its original color because of exposure to light; that the fixtures would also darken from exposure within six months or a year; that the fixtures could have been immediately brought to the color of the sample by the application of a chemical wash; that the plaintiff sent a representative, named Drake, to apply the wash to defendants' fixtures, but defendant refused to allow Drake to go over the fixtures; that at the time of the trial (which was had on April 27, 1925) the fixtures had darkened to practically the shade of the sample; and that there was $845.70 (principal and interest) then due plaintiff from defendant. The original sample of "No. 56 wax" and a fresh sample of the same finish, which was lighter in color than the original, were shown to the jury. The chemical wash was then applied to the fresh sample, which darkened to match the original.
Two witnesses testified for defendant, D. E.
Rogers, its president, and J. O. Schenerlein, its secretary. Their evidence tended to establish the following facts: That the fixtures came in an entirely different finish from that ordered; that upon its arrival Wills admitted the mistake, and promised that plaintiff would furnish new fixtures; that Drake said the fixtures could not be made to match the sample, and the only remedy was to furnish new fixtures; that the lighter finish was not suitable for the business of defendant, which was handling automobile accessories, as it would mar and absorb grease more quickly than the darker finish; that the fixtures did not match in color the other woodwork of the store; and that there had been no lessening of sales because of the lighter finish.
Rogers estimated that the damage by reason of the lighter finish of the fixtures was $50 a year, and that the fixtures would probably last for ten years. He admitted on cross-examination that his estimate of damages was based on what it was worth to him to be satisfied with the color. Schenerlein considered the estimate of damages made by Rogers to be very reasonable. He also stated that the fixtures had already become marred by use to a certain extent, which would not have happened if they had been of the darker finish, but he did not state any amount of damages because of such marring.
The following instruction was offered by plaintiff, but refused by the court:
"The court instructs the jury that, if they believe from the evidence that the fixtures delivered by the plaintiff to the defendant...
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