Attala Warehouse & Compress Co. v. J. N. Alexander Mercantile Co.

*622 Anderson, J., delivered the opinion of the court. J. N. Alexander Mercantile Company, a corporation under the laws of this state engaged in the mercantile business at Kosciusko, in Attala county, including; the purchase and sale of cotton, sued appellant, Attala Warehouse &. Compress Company, a corporation under the laws of this state, also located at Kosciusko, for damages claimed to have been suffered by appellee on account of appellant’s broach of contract in failing to “line up” for sampling, grading, inspection, sale and compression for shipment eight hundred and twenty-six bales of cotton belonging to appellee which had been stored in appellant’s warehouse for said purposes. There was a trial before a jury and a verdict for appellee, followed by a judgment, from which appellant prosecutes this appeal. At the conclusion of the evidence appellant requested a directed verdict in its favor, which was refused by the court. In our view this is the only assignment of error that should be considered. The controlling facts in the case are substantially as follows: During the cotton season of 1919-20 appellant was engaged in warehousing and compressing cotton, and in connection therewith when its patrons desired to make sales of cotton stored with it, appellant, on their “turn down orders,” undertook and agreed to separate and line up their cotton so that it could be sampled, graded, and inspected by prospective buyers, and when sales were made to compress such cotton for loading and shipment; and to promptly and within a reasonable time execute such “turn down orders.” When its patrons stored cotton with it for said *623 purposes, appellant g;ave a receipt in the following form, filling out the blanks therein and signing the same: “Attala Warehouse and Compress Company, number -, Kosciusko, Mississippi, (date) Received of the J. N. Alexander Mercantile Company, one bale of cotton, marked A, number-, weight-, remarks-, “ (Signed) “Attala Warehouse & Compress Co. “By D. W. Musselwhite> Weigher. “Not responsible for loss or damage by fire or water, but will provide insurance when requested. This bale of cotton to be delivered only on return of this receipt and the payment of charges.” The stipulations in such receipts, however, did not embody, as will be seen, the undertakings and obligations of appellant with reference to executing the “turn down orders” of its patrons. Appellee’s evidence tended to show, however, that that obligation and duty went with every storage of cotton by its patrons; that if not express it was at least a tacit agreement between the parties. It was a part of appellant’s services to its patrons covered by its charges. During the cotton season of 1919-20 appellee stored with appellant something like two thousand bales of cotton. The suit in this case grows out of the handling of two separate lots of cotton by appellant, one for four hundred and twenty-six bales and another for four hundred bales. Appellee gave appellant first a “turn down order” for four hundred and twenty-six bales of cotton. Appellee alleged in its declaration, and its evidence tended to show, that appellant breached its contract of storage and handling in failing within a reasonable time to line up this four hundred and twenty-six bales of cotton for sampling, grading, inspection, sale, and compression; that on account of appellant’s failure to perform its contract in that respect, appellee shipped the four hundred and twenty-six bales of cotton flat to Stewart-Gwynne & Co., Memphis, Tenn., that is, they shipped it without its having been compressed, and Stewart-Gwynne & Co. sold *624 it on appellee’s account in the Memphis market, where it was compressed and handled as it should have been compressed and handled by appellant at Kosciusko. The freight on this cotton from Kosciusko to Memphis was one thousand two hundred seventy-five dollars and ninety-one cents, and the charges for loading it out for shipment were two hundred and thirteen dollars making a total of one thousand four hundred eighty-eight dollars and ninety-one cents. These charges alone constituted the damages claimed by appellee on account of appellant’s alleged breach of its contract with reference to the four hundred and twenty-six bales of cotton. The whole transaction with reference to this lot of cotton, including the shipment by appellee to Stewart-Gwynne & Go. at Memphis, took place more than three years before the beginning of this suit by the appellee. During the same cotton season, but later in the season, appellee gave appellant a “turn down order” for four hundred bales of its cotton for delivery to A. B. Falk. Appellee charged in its declaration, and its evidence tended to show, that appellant breached its contract to promptly and within a reasonable time line up this lot of cotton for the purpose of inspection, sampling, compression, and delivery, and that on account of such failure on the part of appellant appellee suffered damages for which it sued as follows: Appellee’s bank had furnished the money to buy this lot of cotton for which appellee was indebted and on which it was paying-; interest. That the delay on the part of appellant caused appellee to pay on the said indebtedness additional interest of five hundred eighty-two dollars and eighty cents. That also during the time of such delay appellee had to keep the cotton insured, which cost him two hundred twenty-nine dollars and fourteen cents. The cause of action as to this lot of cotton accrued to appellee within three years of the suit. In addition to the general issue, appellant pleaded specially the three-year statute of limitations as to the damages claimed on account of appellant’s breach of contract in failing to deliver the four hundred and twenty-six bales of cotton *625 within a reasonable time. The cause of action as to this lot accrued more than three years before suit was begun. We will consider first the question whether the claim of appellee for damages growing out of the handling of the four hundred and twenty-six bales of cotton was barred by the statute of limitation. Appellant contends that the three-year statute of limitation applies, while appellee contends that the six-year statute apjjlies. The three-year statute provides, among other things, that actions “on any unwritten contract, express or implied, shall be commenced within three years next after the cause of such action accrues and not after.” Section 3099, Code of 1906; section 2463, Hemingway’s Code. The six-year statute provides that all actions for which no other period of limitation is prescribed shall be commenced within the six years next after the cause of such action accrued and not after. „ Section 3097, Code of 1906; section 2461, Heming*way’s Code. The warehouse receipts issued by appellant to appellee for the cotton in question are exhibited with the declaration. Appellee contends that they are the basis of its action; that therefore the contract between the parties was in writing, and the six-year statute of limitation applies. On the other hand, appellant contends that the warehouse receipts do not contain the contract upon which appellee sued, but that it rests entirely in parol. It should be kept distinctly in mind exactly the contract appellee relies upon. It was that appellant, on receiving “turn down orders” for this lot of cotton would fail, refuse and neglect to line it up promptly and within a reasonable time for sampling, grading, inspection, and shipment. The receipt issued, it will be observed, has no provision whatever with reference to such an obligation on the part of appellant. It simply acknowledges the receipt of so much cotton, the date, weight, marks of the cotton, and a notation that appellant will not be responsible for loss or damages by fire or water and will provide insurance when requested and deliver the cotton only on the return of the receipt *626 and payment of charges. The entire contract on which appellee relies rests in parol. It is an express contract, it is true.; but it is an unwritten contract. There is- no stipulation or provision in the receipt whatever which in the remotest refers to appellant’s undertaking’ which was breached and which was the basis of appellee’s suit. We hold therefore that this question is controlled by Foote v. Farmer, 71 Miss. 148, 14 So. 445; Pate Lbr. Co. v. So. Ry. Co., 115 Miss. 402, 76 So. 481; Warren Godwin Lbr. Co. v. Lumber & Mineral Co., 120 Miss. 346, 82 So. 257; Hembree v. Johnson, 119 Miss. 204, 80 So. 554. Appellee argues that the question is decided in its favor by I. C. R. Co. v. Jackson Oil & Refining Co., 111 Miss. 320, 71 So. 568. The facts in that case were that the railroad company, the defendant, transported a car of cotton seed under a bill of lading providing for delivery to the plaintiff. Some of the seed were lost in transit. It was held that the suit for the loss of the seed was based on a written contract, the bill of lading, which was a contract to deliver the seed to the plaintiff, which was breached, and that the six-year statute of limitation applied, and not the three-year statute. Plainly in that case there was a written contract to deliver the seed. They were not delivered; therefore the contract was breached. Clearly the six-year statute applied and not the three-year statute. In that case the undertaking and obligation of the railroad company was set out in the writing, the bill of lading. In the present case the writing, the warehouse receipt, is silent as to any undertaking or obligation on the part of appellant to do the things with' reference to appellee’s cotton which appellee claimed appellant failed to do. We hold therefore that the claim growing out of the handling of the first lot of cotton was barred by the three-year statute of limitation. Appellant contends that appellee failed in its evidence to make out a case for any damages whatever growing out of the handling of either of the lots of cotton. Appellant argues that the breach of contract upon which *627 appellee relies is simply a failure ou the part of appellant to prepare the cotton for the market and delivery to appellee or its vendee within a reasonable time, and that the measure of appellee’s damages is the difference in the market price of the cotton at the time and place it should have been delivered and the market price at the time and place it was delivered, provided the latter price was less than the former. Appellee concedes that that is the general rule as to damages for nondelivery, but contends that notwithstanding it was entitled to the special damages which were alleged and proven in this case. It is true that the measure of damages for a breach of contract to deliver personal property which is intended for sale in the market in a case like this is the difference in the market price at the time and place delivery was due and the market price at the time and. place delivery was made, provided the latter price is less than the former. It is also true that in a proper case in addition to such general damages the plaintiff might be entitled to 'recover special damages shown to have been brought to the attention of the defendant and therefore in the contemplation of the parties. In the present case the appellee sought alone to recover special damages, the freight and loading charges on the lot of cotton shipped to Memphis and the interest and insurance charges on the lot contracted to be sold to Falk. In such a case can there be a recovery for special damages unless the plaintiff shows that such special damages have not been recouped in whole or in part by an advance in the market price at the time delivery is made over the market price when delivery was due? We think not. The burden was on appellee to make out his case both on the issue of liability and on the issue of damages. The purpose of awarding actual damages for a, breach of contract is to make the plaintiff whole. It is to compensate him for his loss. It is not for the purpose of giving him a good bargain on account of the wrong done him. Appellee not only failed to show by its evidence whether it lost or made money by appellant’s breach of the contract, but *628 objected to evidence sought to be brought out by appellant for the purpose of developing that fact. Certainly appellee would not be entitled to recover special damages if the delay in the delivery of the cotton profited appellee more than the special damages proved. We hold that appellee stopped with its evidence before it made out a case. The trial court should have directed a.verdict for appellant on this ground as to both lots of cotton. Reversed, mid judgment here.