McCall v. Gloucester Lumber Co.

OlaeKsoN, J. Tbe record discloses many interesting questions that we need not now consider. “A party is not permitted to try bis case in tbe Superior Court on one theory and then ask tbe Supreme Court to bear it on another and *601 different theory. Warren v. Susman, 168 N. C., 457.” Shipp v. Stage Lines, 192 N. C., at p. 478; In re Will of Efird, 195 N. C., at p. 84. The theory upon which the court below tried the case: The evidence of plaintiff tended to establish the contract as alleged by him. The probative force of the evidence was for the jury and they found the contract was as contended for by the plaintiff. We come to consider the contract: (a) “The Gloucester Lumber Oompany agrees and binds itself and its assigns to purchase from the said J. Frank McCall all of the merchantable saw timber which he may deliver — by the railroad of the said Gloucester Lumber Oompany at — to be agreed upon between the parties hereto — and to pay for the same within thirty days after the same is scaled, with no right or privilege on the part of the Gloucester Lumber Oompany to retain any part of the purchase price as ‘hold back.’ (b) The Gloucester Lumber Company further agrees to purchase all the acid wood which the said J. Frank McCall may deliver on cars of the Gloucester Lumber Company at a price of $4 per cord of 168 cubic feet (said cars to be placed on the track of the Gloucester Lumber Company at such place or places as the said J. Frank McCall may designate. And if the market price of the said wood advances, then the said J. Frank McCall shall receive the benefit of such advance, and in no case shall the said J. Frank McCall receive less than $3.75 per cord for said acid wood, and in no ease shall the Gloucester Lumber Oompany receive more than $1 per cord as freight charges, (c) It is further agreed that the Gloucester Lumber Company shall pay to the said J. Frank McCall $8 per ton of 2,240,pounds for all tan bark delivered on cars of the Gloucester Lumber Company (such cars to be placed at such points along the said company’s railroad as the said J. Frank McCall may designate), and if the market price of the said tan bark advances, then the said J. Frank McCall shall receive the benefit of such advance,” etc. From a just construction of the contract, all the wood product had to be hauled and delivered at the railroad. The reasonable cost to cut, haul and deliver this from the stumpage was a material item. The court below charged the jury, to which exception and assignment of error was made, as follows: “The court charges you that if you find by the greater weight of the evidence that the plaintiff and defendant entered into the contract as alleged in the complaint, and if you find that J. F. McCall was the owner of the wood products on the J. G. McCall tract, in Dave’s Cove and on Indian Creek, or had the right to contract for the sale and delivery of the same, and that he granted a right of way over the same; that in compliance with the terms of said contract he did grant a right of way over the said land; that in consideration for the granting of said right of way the defendant agreed to *602 purchase from the plaintiff the saw timber, acid wood and tan bark on said land, and that the defendant breached the contract by refusing to accept and pay for said wood products, then the plaintiff would be entitled to recover of the defendant the difference in the value of said wood products before a\nd after said breach. If you find that the plaintiff and defendant did not enter into the contract, as alleged, or that the plaintiff did not grant to the defendant the right of way, as alleged, then you should find that the plaintiff is entitled to recover nothing.” In the charge we think there was error. In Construction Co. v. Wright, 189 N. C., at p. 460, this Court, speaking to the subject, said: “The plaintiff challenged the right of the defendant to present this question in an exception to the charge, because the defendant did not ask, in writing, for any special instructions on this question. It appears to us not to be necessary, in the instant case, in order to present this question, that a, written request should have been made. The true rule appears in Strunks v. Payne, 184 N. C., 582. Whenever the trial court attempts to state the rule of law applicable to the case, he should state it fully and not omit any essential part of it. The omission of any material part is, necessarily, error of an affirmative or positive kind. Therefore, it may be taken advantage of on appeal, by an exception to the charge, without a special request for the omitted instruction.” In Bank v. Rochamora, 193 N. C., at p. 8, quoting numerous authorities, the law is thus stated: “Where the instruction is proper so far as it goes, a party desiring a more specific instruction must request it.” This applies to subordinate elaboration, but not substantive, material and essential features of the charge. C. S., 564. The vice in the present case is that the instruction is not proper so far as it goes. The learned and careful judge trying a long and complicated case as the present, inadvertently laid down an erroneous rule to guide the jury as to the measure of damages under the contract in this case. In Hunter v. Gerson, 178 N. C., at p. 486, bearing on the subject, it is said: “The-rule for assessment of damages in a case like this is well settled, and it is the difference between the contract price of the rails and their fair market value at the time and place fixed by the contract for their delivery. Lumber Co. v. Furniture Co., 167 N. C., 565; Lumber Co. v. Mfg. Co., 162 N. C., 395; Berbarry v. Tombacher, 162 N. C., 497. In the first case cited above the Court says: 'The court gave correct instructions as to the rule for admeasuring damages, it being the difference between the contract price and the market price at the pla.ce and time appointed by the contract for the delivery. This is the standard of adjustment, as between the parties where there has been *603 a breach, or failure to deliver, from a very ancient period, and is, we believe, universally adopted as being in reality tbe only one for our safe guidance, and a very just one, too.’ "We extract (quoting from Masterton v. The Mayor, etc., 7 Hill, at p. 71) tbe following from Hawk v. Lumber Co., 149 N. C., at p. 14: “Tbe language of Nelson, G. J. (afterwards a Justice of tbe Supreme Court of tbe United States), is especially applicable to our case. He says: ‘Where tbe contract, as in this case, is broken before tbe arrival of tbe time for full performance, and tbe opposite party elects to consider it in that light, tbe market price on that day of tbe breach is to govern in tbe assessment of damages. In other words, tbe damages are to be settled and ascertained according to tbe existing state of tbe market at tbe time tbe cause of action arose, and not at tbe time fixed for full performance. Tbe basis upon which to estimate tbe damages, therefore, is just as fixed and easily ascertained in cases like tbe present, as in actions predicated upon a failure to perform at tbe day.’ ” Tbe contract fixed no time for performance or price as to tbe merchantable saw timber and tbe price of tbe acid wood and tan bark was subject, under tbe contract, to fluctuation. Tbe standard of adjustment is tbe fair market value at tbe time of tbe breach. Tbe railroad was fixed in tbe contract as tbe place of delivery. Tbe measure of damages is tbe difference between tbe fair market value for the wood product delivered according to tbe terms of tbe contract and tbe fair market value of tbe property in its then condition at tbe time of tbe breach. Briefly, market value or price means tbe fair value a,s between one who desires, but is not compelled to buy and one who is willing but not compelled to sell. This error was material and prejudicial under tbe facts and circumstances of this case. For tbe reasons given there must be a New trial.