Sprout, Waldron & Co. v. Ward

• Decision Date: 11 May 1921
• Docket Number: 479.
• Citation: 107 S.E. 214,181 N.C. 372
• Parties: SPROUT, WALDRON & CO. v. WARD ET AL.
• Court: North Carolina Supreme Court

107 S.E. 214

181 N.C. 372

SPROUT, WALDRON & CO. v. WARD ET AL.

No. 479.

Supreme Court of North Carolina

May 11, 1921

Appeal from Superior Court, Randolph County; Lane, Judge.

Action by Sprout, Waldron & Co. against J. L. Ward and J. M. Canoy trading as Ward & Canoy. Judgment for defendants, Plaintiff contracted with defendants to sell and plaintiff appeals. New trial.

Purchaser of roller mill which was not as warranted may recover the difference between the value of the mill as seller contracted it should be and the value of it as it was when delivered.

them a roller mill outfit for $1,225, to be paid in certain specified installments. It shipped the mill to defendants who alleged that it was so defective that it would not make good flour, and by reason thereof they failed to get patronage which otherwise they would have received, some of defendants' witnesses testifying that they would have had their wheat ground at defendants' mill "if they had made as good flour there as was made anywhere else," and one of their witnesses, Marcus Briles, was permitted to answer, over plaintiff's objection, the following question:

"Q. State whether or not you would have patronized that mill if it had made good flour. A. I could not say for certain; it is likely that I would."

One of the defendants was allowed to testify that they could have made a profit of $13 or $15 per day, if the mill had been what it was represented to be. This estimate was not based on the existence of any contracts to grind at the mill, or on any trustworthy data, but evidently upon the opinion, or conjecture, of the witnesses as to what patronage the defendants would get, and upon the testimony of witnesses who stated they would have had their wheat and corn ground there if the grinding was done as well as at other mills.

The judge stated to the jury that there was no evidence as to what was the market price of the toll wheat or corn. The principal defect in the mill was in the shape of the reel which should have been round. This was not rectified by plaintiff for some time after the mill was received by the defendants.

Issues were submitted to the jury, and a verdict of $500 returned by them for the defendants.

H. M Robins, of Ashboro, for appellant.

J. A. Spence, of Ashboro, for appellees.

WALKER, J. (after stating the facts as above).

The judge erred, at least in receiving the testimony of the witness, Marcus Briles, above set forth. Conceding for the sake of discussion that it was competent to show by witnesses that they would have had their flour and corn ground at defendants' mill if it had made good flour, the testimony of Briles should not have been admitted for that purpose, as he was not certain himself that he would have patronized the mill under the circumstances stated in the question, and it was not more than "likely" that he would. If he was not certain, how could we expect the jury to be certain about it and to consider his answer in determining the amount of damages? And they may have considered it, and most probably did, for the court admitted it as some proof of the profits that would have been realized.

We held in Machine Co. v. Tobacco Co., 141 N.C. 284, 53 S.E. 885 (affirmed in Hardware Co. v. Buggy Co., 167 N.C. 423, 83 S.E. 557):

"1. Where one violates his contract he is liable for such damages, including gains prevented as well as losses sustained, which may fairly be supposed to have entered into the contemplation of the parties when they made the contract, that is, such as might naturally be expected to follow its violation, and they must be certain, both in their nature and in respect to the cause from which they proceed.

2. The law seeks to give full compensation in damages for breach of contract, and in pursuit of this end, it allows profits to be considered when the contract itself, or any rule of law, or any other element in the case, furnishes a standard by which their amount may be determined with sufficient certainty.

3. In an action for damages for a breach of contract, in the absence of some standard fixed by the parties when they made their contract, or otherwise, the law will not permit mere profits, depending upon the chances of business and other contingent circumstances, and which are perhaps merely fanciful, to be considered by the jury as part of the compensation."

In the first case the plaintiff had contracted for the exhibition of certain cigarette machines, manufactured by himself, at the St. Louis Exposition, and defendant broke his contract by failing to exhibit the machines sent to him for the purpose, and plaintiff claimed, as damages, the loss of profits he might have made if the contract had been complied with by defendant, there being no sufficient data afforded by the contract itself or by evidence relevant thereto by which profits could be ascertained, and for this reason the recovery of profits was disallowed. With respect to somewhat similar facts, the court (by Justice Connor) said, in Coles v. Lumber Co., 150 N.C. 183, 63 S.E. 736:

"The suggestion that if the yard had been relieved of the lumber which plaintiff was to take

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