Gwin v. Hopkinsville Milling Co.

• Decision Date: 07 November 1914
• Docket Number: 878
• Citation: 190 Ala. 346,67 So. 382
• Parties: GWIN et al. v. HOPKINSVILLE MILLING CO.
• Court: Alabama Supreme Court

67 So. 382

190 Ala. 346

GWIN et al. v. HOPKINSVILLE MILLING CO.

No. 878

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Assumpsit by the Hopkinsville Milling Company against J.C.B. Gwin and others. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals. Affirmed.

Perry &amp Bumgardner, of Bessemer, for appellants.

London & Fitts, of Birmingham, for appellee.

GARDNER J.

This is the second appeal in the cause. Hopkinsville Milling Company v. Gwin et al., 179 Ala. 472, 60 So. 270.

The suit is by the vendor (appellee) against the vendees (appellants) for recovery of damages for breach of an executory contract for the sale of 1,000 barrels of flour. A copy of said contract appears in the report of the case on former appeal, supra.

Demurrer was sustained to plea 3, and this is the assignment of error first insisted upon by counsel. This plea purports to be in bar of the action and a full and complete defense thereto. The plea sets up a resale of the flour by the seller, but does not aver that the contract price was obtained, nor what price, in fact, was realized.

It seems to be the insistence of appellants that the plea shows an election on the part of the seller, and that therefore the present action cannot be maintained. We do not agree, but are of the opinion that the plea merely shows a resale as a method of proving the value and therefore that it goes only to the measure of damages.

Speaking to this subject, it is said in Mechem on Sales, vol. 2, § 1649:

"The remedy of the seller, where the title has not passed, being thus primarily a personal one for the recovery of damages, and those damages being, as already stated ordinarily the difference between the contract price and the market value of the goods, it becomes material to show what that market value is. Two methods of proving this value are available to the plaintiff: (1) He may call witnesses familiar with the market to testify what the market value of the goods in question was at the time and place in issue i.e., what, in their opinion, the goods would have sold for, if they had been put upon the market. (2) He may himself proceed to sell the goods in the market, and may then show what, in fact, they did sell for. The purpose of this sale by the vendor is to make evidence for himself of a matter of fact, rather than to rely upon what must otherwise be somewhat a matter of conjecture or opinion."

And in West v. Cunningham, 9 Port. 104, 33 Am.Dec. 300, we find this quotation:

" 'A resale was not necessary to fix the liability of the defendant for a breach of contract, and the action, in another form, could have been maintained, without showing a resale; it might be one mode of ascertaining the amount of damages, perhaps the best, but certainly not the only way of ascertaining the same.' "

The plea went only to the measure of damages, and did not traverse or confess and avoid the complaint, and was therefore not a plea in bar to the action, as it purports to have been 2 Mechem on Sales, §§ 1692, 1647, 1678; West v. Cunningham, supra; Hardwick v. American Can Co., 113 Tenn. 657, 88 S.W. 797.

There was no error in sustaining the demurrer to this plea. When the case was here on former appeal it...