Wilson v. Wiggin
| Decision Date | 26 October 1915 |
| Docket Number | 2871. |
| Citation | 87 S.E. 92,77 W.Va. 1 |
| Parties | WILSON v. WIGGIN. |
| Court | West Virginia Supreme Court |
Submitted September 21, 1915.
Rehearing Denied Dec. 7, 1915.
Syllabus by the Court.
In absence of statute or stipulation of the parties, money paid by appellant to a stenographer for a transcript of the stenographic notes of the testimony adduced in the trial court, preparatory to application for and hearing upon an appeal, is not recoverable as costs.
To entitle plaintiff to recover substantial damages for breach of contract, where the loss is pecuniary and susceptible of proof with approximate accuracy, he must establish the quantum of damages with reasonable certainty. Where no sufficient data is afforded whereby a jury may definitely ascertain the compensation due for the breach, recovery therefor can be nominal only.
For breach of contract for the sale of personalty by nondelivery of the property, the measure of damages ordinarily is the difference between the contract price and the market value of the articles at the time and place specified for delivery.
Under such contract for breach of warranty as to the quality of the goods, where they are accepted and retained by the purchaser the measure of damages is the difference between the value which the articles sold would have had at the time of delivery if sound and corresponding to the warranty and their actual value at that time with the defect.
Appeal from Circuit Court, Raleigh County.
Suit by W. L. Wilson against H. D. Wiggin. From decree for plaintiff defendant appeals. Modified and affirmed.
File & File, of Beckley, for appellant.
T. N Read, of Hinton, A. A. Lilly, of Charleston, and J. E. Brown of Beckley, for appellee.
Upon the withdrawal of the motion for an issue out of chancery, after the remand on the former appeal (73 W.Va. 560, 81 S.E. 842), the cause was submitted for decision on the record and briefs theretofore filed and any additional argument in writing desired by counsel, with the further provision that on any finding for plaintiff defendant should have credit for all costs awarded in the cause in his favor, the amount thereof to be taxed by the clerk. The court did find for plaintiff the amount ascertained by the jury upon the trial of the issue, but refused to credit thereon $112.50 paid by defendant for transcribing the stenographic notes of the evidence adduced upon such trial preparatory to the application and hearing upon the appeal awarded him. The amount claimed and payment are conceded. The right to credit therefor was denied solely on the ground, as recited by the final decree, that "the same is not recoverable costs."
This conclusion was not erroneous. There is no general statutory provision in this state allowing recovery of such expense. In the absence of such provision or a stipulation of the parties, payment made for services of a court reporter in the trial of a case, at the request of one or both parties, is not allowable as costs. Cohen v. Weill, 32 Misc. 198, 65 N.
Y. Supp. 695; Provost v. Farrell, 13 Hun (N. Y.) 303; Bringgold v. Spokane, 19 Wash. 333, 53 P. 368. This rule applies, though the translation of the notes be procured for the purpose of preparing the record for an appellate process. Brown v. Winehill, 4 Wash. 98, 29 P. 927.
The second item not credited to appellant, Wiggin, was $124 paid by him as compensation for the difference between the value of the lumber he sold to Atwood Bros. at Whitman, Mass., and the lumber purchased by him of the plaintiff for vendition to them, under a contract of purchase for 1,000,000 feet of lumber of definite quality and grade at fixed prices per 1,000 feet. The agreement between plaintiff and defendant was executory for future delivery. The Atwoods purchased of Wiggin certain of the grades. He ordered it from Wilson, who, pursuant to directions by Wiggin and in part execution of the contract between them, shipped it to the Atwoods. They complained of the inferiority in the grades and declined to pay the agreed price, demanding a reduction of the amount allowed by Wiggin and now claimed by him as a proper credit on the decree rendered on the final hearing of the cause. The correctness of the amount so deducted and allowed is not disputed. But for plaintiff it is contended the lumber shipped conformed with that he agreed to sell and did sell to defendants.
They had theretofore been dealing with each other in the purchase and sale of the same character, quality, and grades of lumber. No discord had arisen out of their former dealings. The contract now involved is evidenced only by correspondence. June 9, 1908, plaintiff proposed to sell defendant 1,000,000 feet of poplar at the same price he was receiving from Wiggin, "to be log run, all mountain poplar." Two days later Wiggin replied:
"In conformity with your offer of June 9, I will take the one million feet of mountain poplar, to be delivered during 1909, at the same prices that I am now paying, viz., 1's and 2's $40.00, bright saps $30.00, No. 1 common $25.00, shipping culls $16.00; terms of payment to be identical with our contract of 1908."
That agreement required delivery The offer and acceptance were repeated in letters of subsequent dates, the last by Wilson omitting to define the lumber as mountain poplar, but saying "It is my understanding that I have sold you one million feet of poplar, log run," repeating the prices theretofore specified by the negotiations. A former letter by Wiggin described the lumber as "mountain poplar, soft and yellow, well sawn and well taken care of." The whole tenor of the correspondence was such as to indicate the character of the lumber intended by the parties. Besides, the lumber shipped proved satisfactory and unobjectionable in quality until the shipment to the Atwoods in October, 1909, the year prescribed for complete delivery. They interpreted the meaning of the contract to be as defendant contends it is--one for soft mountain poplar. The lumber shipped to the Atwoods the witnesses described as "hickory or bastard poplar," flinty in texture, and disposed to twist and buckle. Not all of it was soft or mountain poplar, as generally understood by those engaged in the manufacture and sale of lumber. In quality it did not correspond with that sold by defendant; hence the declination to pay for it, without a reduction to the extent claimed and allowed. To this defendant was entitled to credit.
Of the defectiveness in quality of other shipments under the contract, the proof is inconclusive. Nor is there any definite showing of deduction from the prices at which other timber shipped by plaintiff, as directed by Wiggin, was sold by the latter.
But defendant challenges the correctness of the amount by the decree found due from him. For shipments made pursuant to his order he refused to pay, because not conforming with the quality prescribed. To enforce payment therefor plaintiff instituted this proceeding, based upon an attachment against defendant as a nonresident. He appeared, and claimed the right to recoup damages for breach of the contract. Plaintiff failed and refused further to furnish the stipulated quantity, basing his action upon results of inspections made according to rules promulgated by the Legislature of Massachusetts.
Defendant undertook to show, and in effect did show, the quantity of the several grades he did not receive. But when asked to state the quantum of the damages thereby sustained h...
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