Adams v. Fleming

Bell, J. 1. Wliero an action was brought upon an open account os for the balance of the purchase price of property sold and delivered, and the evidence on the trial showed without dispute that the property had not been sold, but had been delivered to the defendant rmder a contract for the exchange of the same for other property, a part of which the plaintiff had not received, and that the plaintiff had not rescinded the contract or offered to do so, but was relying thereon, a verdict in his favor was without any evidence to support it, and contrary to law', . The plaintiff's remedy was an action for damages for a breach of contract, and the measure of damages would be the market value of the property that he should have received, but had not received, in the exchange, to be. determined as of the time for delivery under the contract. Butler v. Sams, 138 Ga. 748 (75 S. E. 1127); Busbee v. Chapman, 139 Ga. 19 (76 S. E. 377); Civil Code (1910), §§ 4270, 4271. 2. It follows that the court erred in refusing a new trial. Judgment reversed. Jenkins, P. J., and Stephens, J., concur. Claude Christopher, for-plaintiff in error. Dobbs & Barrett, contra.