Standard Supply Co. v. Carter & Harris

Decision Date13 August 1908
Citation62 S.E. 150,81 S.C. 181
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court, Lee County; Geo. E. Prince Judge.

Action by the Standard Supply Company against Carter & Harris. From an order overruling a demurrer to the answer, plaintiff appeals. Affirmed.

Lee & Moise and McLeod & Dennis, for appellant.

McLendon & Tatum, for respondent.


The complaint alleges an indebtedness of the defendant to the plaintiff of $317.20, the price of a lot of roofing and a 12 by 14 Clarke engine. The answer, as a counterclaim, sets up damages to the amount of $1,995 for breach of contract of sale. The appeal is from an order of the circuit judge overruling a demurrer to the answer.

Shortly stated, the substantial allegations of the answer on which the counterclaim rests are: The defendants, merchants doing a large credit business at Elliotts, S. C., installed a cotton ginnery, so that they might not only make a direct profit from ginning cotton, but also facilitate their collections by having the first opportunity to purchase the cotton and cotton seed of their debtors. On April 12, 1906, the plaintiffs for value contracted to deliver to defendants one 12 by 14 Clarke engine on or before August 1, 1906, intended to furnish the power for defendant's ginnery for the season of 1906. The ginning season begins about the middle of August. Though fully informed of the injury that would result to defendant's business from a delay in the delivery of the engine, yet plaintiff did not deliver it until about September 26, 1906. The specifications of damage are thus set out in the answer: "The defendants were unable to operate their said ginnery for more than 40 days of the best part of the cotton ginning season of 1906, during which time a very large per cent. of the cotton crop was ginned; that the money invested in their said cotton ginning plant was idle and unproductive during said time; that by reason of their inability to operate their said cotton ginnery they were caused to lose all of the large patronage and the profits of the same which was previously theirs which was assured them, and which they would have gotten during said time, part of which profits they have never recovered; that a considerable part of said patronage was persons who owed accounts to defendants, and they were deprived of the first opportunity, and in many cases of any opportunity, to buy the cotton of such debtors, which caused considerable injury to their collections; that by being thus thrown out of the first contract with a quantity of cotton and cotton seed which would have come to their ginnery, as the same was prepared for market, they lost the purchase of the same and profits thereof; and that the good will of defendants' cotton ginning business was greatly damaged and injured by reason of said delay-all to the hurt, damage, and injury of the defendants in the sum of $1,995."

The circuit judge was undoubtedly right in holding the allegations of the counterclaim stated a cause of action for the rental value of the ginnery plant, for the period that the plaintiffs' delay in the delivery of the engine kept it idle. It is true, as plaintiff contends, defendants cannot recover remote, contingent, or speculative damages based on profits they hoped to make. Tappan & Noble v. Harwood, 2 Speers, 536; Sitton v. MacDonald, 25 S.C. 68, 60 Am. Rep. 484; Mood v. Tel. Co., 40 S.C. 524, 19 S.E. 67; Colvin v. Oil Mill, 66 S.C. 61, 44 S.E. 380; Hays v. Tel. Co., 70 S.C. 16, 48 S.E. 608, 67 L. R. A. 481, 106 Am. St. Rep. 731; Howard v. Stillwell Co., 139 U.S. 199, 11 S.Ct. 500, 35 L.Ed. 147. But if the defendant proves his allegations that the operation of the ginnery depended on plaintiffs' delivery of the engine at the time agreed on, that this was fully explained to plaintiff when the contract was made, and that the failure of the plaintiff to comply with its contract prevented the operation of the ginnery, then there cannot be a doubt of the liability of the plaintiff for the direct damages which resulted from the ginnery plant being idle. These damages would be the value of the use of the plant for the period of inactivity due to plaintiffs' delay in delivering the engine. The general rule, well supported by authority and the fairest that could be adopted, is that damages for the wrongful deprivation of the use of specific property are to be measured by its rental value. Tappan v. Harwood, 2 Speers, 536; Martin v. Railway Co., 70 S.C. 8, 48 S.E. 616; Cannon v. Hunt, 113 Ga. 501, 38 S.E. 983; Griffin v. Colver, 16 N.Y. 489, 69 Am. Dec. 718; Brownwell et al. v. Chapman, 84 Iowa, 504, 51 N.W. 249, 35 Am. St. Rep. 326; Boyle v. Reeder, 23 N.C. 607; Williams v. Milling Co., 25 Or. 573, 37 P. 49; Brown v. Foster, 51 Pa. 165; Central Trust Co. of N.Y. v. Arctic Ice Mach. Co., etc., 77 Md. 202, 26 A. 493; Wing et al. v. U.S. Fidelity & G. Co. (C. C.) 150 F. 672; Hutchinson Mfg. Co. v. Pinch, 91 Mich. 156, 51 N.W. 930, 30 Am. St. Rep. 463; Korf v. Lull, 70 Ill. 420; Livermore F. & M. Co. v. Union C. & S. Co., 105 Tenn. 187, 58 S.W. 270, 53 L. R. A. 482.

This rule rests on the same reason as the rule that the measure of the vendee's damage for complete breach of the contract for the delivery of goods is the difference between the contract price and the market price. That reason is that things are worth what they will bring in the market, not what the party concerned may think they ought to bring. But when in breach of contract for the sale of goods by a final refusal to deliver, there is no market value by which the damages may be definitely ascertained, it would be unjust and absurd to say the recovery must be limited to nominal damages. The damages then, from the necessity of the case, must be ascertained by inquiry into the value of the article to the injured party. A familiar application of this rule is the allowance to a passenger of the value to him of baggage lost by a carrier. Turner v. Railway Co., 75 S.C. 58, 54 S.E. 825, 7 L. R. A. (N. S.) 188. Many other conditions to which the rule is applicable appear in the cases cited in note to So. Exp. Co. v. Owens, 9 A. & E. Ann. Cas. 1148, and Todd v. Gamble, 148 N.Y. 382, 42 N.E. 982, 52 L. R. A. 227. In Hydraulic, etc., Co. v. McHaffie, 4 Q. B. D. 670, 13 Eng. Rul. Cas. 558, the plaintiffs were under contract to deliver a certain machine by a certain time, and the defendants contracted with them to make a certain part of the machine called a gun. Owing to the delay of the defendants in making the gun, the plaintiffs were unable to comply with their contract, and the machine was left on their hands. It was held the plaintiffs were entitled to recover from defendants the loss of their profit on the machine and their expenditures uselessly incurred in making other parts of the machine. So, also, damages for the temporary deprivation of specific property of another, due to a breach of contract, cannot be restricted to its rental value, where from any cause it has no rental value. In such cases the damages must necessarily be ascertained by an inquiry into the value of the use of the property to the injured party for the time he was deprived of it. Many cases might be cited illustrating this exception to the rule of rental value. A traveling salesman's sample trunks have no rental value, and hence, in Strange v. Railroad Co., 77 S.C. 182, 57 S.E. 724, from necessity, the court laid down the rule that the measure of damages for breach of contract by delay in delivering such trunks, known to be essential to the salesman's...

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