Evans v. . Cumberland Mills

Montgomery, J.: In October, 1889, the defendants in this action contracted to manufacture and deliver to the plaintiffs a large lot of cotton bagging. All of the goods were delivered to the plaintiffs within about thirty days after the contract was entered into, with the exception of 106 rolls thereof, and the plaintiffs had paid within that time a considerable amount on the contract price. On the 15th of November following, and before the 106 rolls had been delivered, (though delivery had been tendered,) the *588 defendants divided the amount which they claimed to be still due to them by the plaintiffs into several sums, each under two hundred dollars, and brought suit upon them in a court of a justice of the peace. The defendants in that action (the plaintiffs in this) set up counter-claims, alleging injury and damage in that the weights and measures of the bagging were short. Judgments were, however, recovered by the defendants in this action, (the plaintiffs in those,) and there were no appeals therefr.om. The present action is brought by the plaintiffs to recover damages for the alleged shortage in weights and measures of the whole lot of bagging. His Honor was right in holding that the plaintiffs were estopped by the justice’s judgments to claim such damages, except for the 106 rolls which were not delivered until after the justice’s judgments ; and as to the latter he properly allowed them to introduce testimony as to the shortage in weights and measures. After an examination, however, of the testimony in this case, we are of opinion that the same was not sufficient to have been submitted to the jury. It did not tend to prove any damage to the plaintiffs. It was not sufficiently definite to enable the jury to form any idea of pecuniary damage. The testimony of James Evans, one of the plaintiffs, is the only testimony on that point, and is as follows : “ I never saw more than twenty-five rolls of it weighed, and we computed weight of the balance from that; that was the way Robbins said to do it. There were eighty-one rolls that we did not weigh. I do not know whether or not the eighty-one bales would have weighed enough to make up the deficiency in the twenty-five rolls. There was a difference of several ounces between the weights of some of the rolls.” In their complaint in this action the plaintiffs allege “ that they were required to pay, and did pay, to the defendants $100 more *589 than the goods delivered would amount to, even at measurement and weight which defendants claim for amount delivered.” The defendants denied this in their answer. The only proof offered by the plaintiffs to make good the allegation was the testimony of James Evans, one of the plaintiffs, and is as follows : “We paid them about $100 more than the bill would have been, if the goods had been according to contract.” If this allegation of the plaintiffs is founded on an over-payment by mistake made before the judgments were had, it should have been pleaded and proved at the trials before the justice. The justice’s judgments are conclusive against any payments alleged to have been made before the judgments were liad. If the allegation is based on a payment by mistake made to the sheriff on the executions in his hands, the payment ought to have been set out in the complaint with particularity and certainty, and proved. The presumption is that the executions in the sheriff’s hands were correct and that he collected only what was due on them. We are of opinion that the allegation and the testimony introduced to support it were both too indefinite and insufficient to justify either verdict or judgment. There is error. New Trial.