Penn & Co. v. Smith

BRICKELL, C. J. This is the third appeal in this case. The former decisions hold, that the contract of sale was negotiated by the exhibition to the buyers of samples of the flour proposed to be sold, from which resulted an implied warranty on the part of the sellers that the bulk of the flour when delivered would correspond to the samples. That in the present action, the burthen of proving the correspondence rested upon the sellers. If the bulk of the flour offered to be delivered, did not correspond to the samples, the buyers could properly refuse to receive it and to pay the purchase money. If there was such correspondence, the buyers were under' the duty of receiving and paying for the flour ; and on the refusal, the sellers, having possession, after giving the buyers notice of their intention, had the right to resell for the satisfaction of the purchase • money. If the buyers desired the resale to be made elsewhere than in Opelika, where the flour was deliverable, or in any particular mode, it was their duty to communicate their wishes to the sellers. In the absence of such communication, a resale made by the sellers at Opelika, in good faith, in such manner as. would command the fair market value of the flour, rendered the purchasers liable for the difference between the amount realized on such resale, and the agreed price of the flour. — Penn v. Smith, 93 Ala. 476 ; Penn v. Smith, 98 Ala. 560. The evidence now before us is not materially different from what it was when the case was here previously, and, as . we are satisfied with, opr foriner rulings, we shall not notice any of the [449] assignments of error which may have been intended to draw them in question. When a contract of sale of goods is broken, the price not having been paid in advance, by the failure of the vendor to deliver them according to the terms of the bargain, as a general rule, the measure of damages the vendee is entitled to recover is the difference between the contract price and the market value of the goods at the time and place of delivery, with interest. — 2 Sedg. Dam., (8th Ed.), § 734; Young v. Gureton, 87 Ala. 727; Bell v. Reynolds, 78 Ala. 511; Haralson v. Stein, 50 Ala. 347. Without entering upon a discussion of the vexed question, or an examination of the conflicting apd contradicting authorities, touching anticipated profits as an element of recoverable damages, the rule seems to be well settled, that if at the time of a contract of purchase, the seller knows the buyer has an existing contract of resale, and the object of the purchase is the performance of that contract, the profits derivable from the resale are recoverable. — Bell v. Reynolds, 78 Ala. 511; Young v. Gureton, 87 Ala. 727; 2 Sedg. Dam., § 740 ; 2 Benj. Sales, (Corbin's Ed.), § 1227. The recovery of such profits depends, however, on the existence of the contract of resale at.the time of the purchase, and the fact that it was made known to the vendors. The plea of recoupment, which was introduced into the case on the last trial, avers particularly that the alleged resale was made subsequent to the original purchase, and without noticing its other defects and insufficiencies, there was no error, for this reason, in sustaining the demurrer to it. The vendors may have known the vendees were engaged in the business of selling flour, and had the general intention of resale, but it can not be supposed that it was in the contemplation of either party, that the vendors should be drawn into a liability for the losses resulting from the failure of the future operations of the vendee in the ordinary course of the business in which .they were engaged. The motive inducing a party to a breach of. contract ■will not involve-him in liability for exemplary or .punitive damages. If there is a breach, the law «.fixes the measure of recovery, and whether the breach was accidental, or willful and intentional, is .not;material. — 2 Sedg. Dam., (8th Ed.), § 603. But whenv the causes [450] producing the breach are a matter of inquiry ; when the party in default justifies it for a particular cause or reason, and the existence of that cause or reason is the matter of dispute, the evidence of the existence of another cause to which the default may be attributed, though it may involve him in an evil intent, is relevant and admissible. Relevant and admissible, not to fix a liability for damages beyond the legal standard, but for the purpose of ascertaining what was the real cause of the default. The appellants assigned as the reason for the rejection of the flour, a want of correspondence with the samples by which the bargain was negotiated. Whether there was such want of correspondence, was the more severely litigated fact. The evidence of the plaintiffs and of the defendants who were examined as witnesses, touching the fact, was in direct conflict. The decline in the price of flour'after the making of the bargain, before the time of its performance, continuing to the refusal of the appellants to receive and pay for the flour proposed to be delivered, had no tendency, it is true, to prove the affirmative fact, the sellers were bound to prove, that the flour tendered corresponded to the samples. But it had a tendency to prove a cause, other than that assigned, which may have induced the refusal to receive and pay 'for the flour. And which was the controlling cause, it was the province of the jury to determine. Another controverted fact, was the reasonableness of the resale— whether it produced the fair value of the flour. There was a disparity between its product, and the price at which the flour was sold originally. The decline in the price of flour, it seems obvious, was a fact, shedding light upon the reasonableness and fairness of the resale, and having a tendency to account for the disparity between its product, and the original price. There was no error in overruling the objection to the admission of this evidence. There are numerous other exceptions to the admission and rejection of evidence, which have been examined and considered. It would serve no useful purpose, and would unnecesarily prolong this opinion to pass upon them separately ; we do not find that in respect to them the court below erred. The instructions given the jurf, numbered from three to six, inclusive, conform to the decisions heretofore [451] made’in this ease. The first instruction, asserts, a mere truism. Collusion between the bidders at the resale, of which the appellees had no knowledge, and in which they had no participation could not affect their right of recovery. Affirmed.