Cherry v. L. J. Upton & Company

AílbN, J. The statements of accounts sent by the New York merchants to the plaintiff were inconsistent, because they were mere un-sworn declarations, and as to the defendant res inter alias acta. If, instead of sending accounts, they had written a letter acknowledging the receipt of the potatoes, and saying they were No. l’s and No. 2’s, and had been sold for a certain amount of money, it would not be contended that the letter would be admitted in evidence, and the accounts of sales contain in effect the same declaration, and are subject to the same objection. The case of Dyeing Co. v. Hosiery Co., 126 N. C., 293, is in point. In that case the plaintiff brought an action to recover a balance alleged to be due for dyeing hosiery goods belonging to the defendant, and the defendant refused to pay upon the ground that the work was defective and the goods damaged. *4 Tbe defendant, after receiving tbe goods from tbe plaintiff, shipped them to another company to be sold, and statements of sales were returned to tbe defendant. On tbe trial tbe defendant offered these accounts of sales for tbe purpose of proving tbe loss on tbe goods, but they were excluded, because, as tbe Court says, “They were simply tbe declarations of tbe defendant’s agent. Their admission would violate tbe rule res inter alias acta, which excludes such evidence.” This authority was affirmed in Peele v. Powell, 156 N. C., 560, which, while reversed on a rehearing, has not been disturbed on this point. Bitting v. Thaxton, 72 N. C., 542, is even a stronger authority against tbe plaintiff. In that case the plaintiff brought an action against the defendant as his agent, among other things, for the conversion of property belonging to the plaintiff, and in order to prove that the defendant had converted thirty-seven boxes of the plaintiff’s tobacco to his own use by selling them to one Reid, offered a copy of Reid’s book in evidence in which Reid had credited the defendant with the tobacco as his own and not as agent for the plaintiff. The evidence was rejected upon the ground that “Reid’s book was only Reid’s declaration, and that was not c'ompetent evidence. And certainly the copy was not be.tter than the original.” This is stronger authority against the plaintiff, because in the Bitting case the defendant had been dealing with the party whose book was offered in evidence, while in this case this defendant has had no connection or business relation with the merchants whose statements were offered in evidence. If another rule should be adopted, and evidence of this character should be admitted,- the doors would be opened wide for collusion and fraud, and parties could be confronted at the trial with damaging evidence of which they would have no notice, without the safeguard of an oath or the opportunity for cross-examination. It follows, therefore, that there was error in receiving the evidence, and in refusing to give the first instruction prayed for. The defendant was also entitled to have the jury instructed on the issue of, damages as requested. “Some measure of damages should have been given to the jury for their guidance,” and it was not sufficient to instruct the jury “to allow such sum as you find the damage to be,” subject to the duty imposed on the plaintiff to mitigate the loss. Coles v. Lumber Co., 150 N. C., 190. ' “The measure of damages in an action by the seller for nonacceptance is the loss directly and naturally resulting in the ordinary course of events from the buyers’ breach of contract. Where there is an available market for the goods in question, the measure of damages is prima facie, *5 or in tbe absence of special circumstances showing greater damage, to be ascertained by tbe difference between tbe contract price and tbe market or current price at tbe time or times wben tbe goods ought to have been accepted, or if no time was fixed for acceptance, then at tbe time of tbe refusal to accept.” 5 Elliott Contracts, 5095. Tbe same rule applies to breaches by tbe seller. “It is undoubtedly tbe general rule that on a failure by tbe bargainer to deliver goods having market value, tbe -measure of damages is tbe difference between tbe contract price and tbe market value at tbe time and place where it should have been delivered.” Hosiery Co. v. Cotton Mills, 140 N. C., 452. Tbe defendant bad tbe right to refuse to receive tbe potatoes, and tbe plaintiff could recover nothing, unless tbe potatoes graded No. 1 and No. 2 as required by tbe contract, and if they were of that quality and tbe refusal of tbe defendant to receive them was wrongful, tbe plaintiff’s damages would be nominal if tbe plaintiff could have sold tbe potatoes at Aurora, tbe place of delivery, for as much as tbe contract price, -or for a greater sum, and tbe defendant was entitled to have tbe jury so instructed, and it was error to refuse to do so as requested. New trial.