Mobley v. Morgan

Opinion by Mb. Justice Gbeen: We think all the facts of this case essential to the plaintiff’s right of recovery, and to the defense set up by the defendants, were very fairly and clearly submitted to the jury by the learned court below. Upon those facts the jury has found for the plaintiff upon ample testimony. It was a part of the contract that the stock was not to be delivered till after the approaching election for directors. Hence, Morgan was not bound to tender the stock till after the election. Within a-reasonable time thereafter he applied to Duff, the agent through whom the stock was sold, to know whether Parker would take the stock, and as Parker was then sick or absent, Morgan waited a few weeks and then again applied to Duff to know when Parker would take the stock. Duff saw' Parker and told him Morgan’s wish and Parker replied “Let him keep it.” This was a refusal by Parker to take the stock. Subsequently Morgan executed a transfer of the stock to Parker, but it does not appear by the testimony whether it was tendered to Parker in this condition or not, at least not until the trial before the justice, when it was produced and offered for delivery. But the proof of Parker’s refusal to take the stock was uncontradicted, and the only question left was the question of damages. The court refused to instruct the jury that it w'as necessary [113] for Morgan to sell the stock on the market for the hest price be could get, and that the measure of damages would he the difference between the price thus obtained and the contract price, and this refusal is assigned for error. Of course the seller would he at liberty after tender and refusal to adopt this course, but it was not essential to his right of action. The measure of damages was the difference between the market price of the stock at the time of the breach and the contract price. This is the ordinary rule; hut there was evidence that the stock had no value, and there is no certainty, indeed no proof, that upon a resale any price could have been obtained for the stock, or that it had any market value when Parker finally refused to take it. In these circumstances we see no reason why the price agreed to he paid should not he adopted as the measure of damages if that was the only mode by which full compensation could he made for the breach of contract by the purchaser. Under the charge we must assume that the facts bearing upon this subject and establishing tbis result were found by the jury, since the case was so left to them. In Rinehart v. Olwine, 5 Watts & S. 162, Pochsrs, J., said: “In the same case [Girard v. Taggart, 5 Serg. & P. 19, 9 Am. Dec. 327,] it is decided that the price of the goods is the measure of damages. The plaintiff has the right to he placed in the same situation he would have been in had the defendant complied with his contract.” The present action originated before a justice of the peace, and there were no final pleadings; and hence it cannot be said this was not an action to recover damages for breach of contract. We see nothing illegal or contrary to good morals in the stipulation that Morgan should hold the stock till after the election and vote on it as Parker desired. Judgment affirmed.