Merideth v. Matthews

Wood, J., (after stating the facts). (1-2) The demurrer was properly sustained. The sixth paragraph of appellant’s complaint does not constitute ¡a meritorious defense; it does not, in express terms, state that the pro - vision of the agreement that “the goods would be shipped and delivered to him immediately, or not later than May 1,1913,” was of the essence of the contract, and the facts stated do not show that it was intended by this provision to make time the essence of the contract. The most that can he claimed for the 'allegations of the sixth paragraph are that the appellees, Spartan Hosiery Mills, violated its contract in failing to ship the goods by May 1, 1913, but this did not 'constitute a meritorious defense to the appellee’s cause of action, for the purchase price of the goods. Conceding the facts to be true as the demurrer admits, appellee would have had no right to repudiate the contract, but he could have, on a suit to enforce the same, set up the damages resulting ito him on account of the Spartan Hosiery Mills’ failure to comply with its contract, by way of counter-claim. Brownfield v. Dudley E. Jones Co., 98 Ark. 495. The measure of appellant’s damages would have been the difference between the contract price and the market price of the goods at the time and place of delivery, provided there was a market price for goods of the character and quality contracted for at such time and place. See Walnut Ridge Mercantile Co. v. Cohn, 79 Ark. 338; 35 Cyc. 633. There are no allegations in the paragraph of the complaint to the effect that appellant was damaged by reason ■of the failure of the appellee, Spartan Hosiery Mills, to have the goods delivered according to the contract, and setting forth the amount of such damages. Even if the court erred in sustaining the demurrer to the sixth paragraph, its judgment can not be reversed. Section 6 of Act 138 of the Acts of 1911, providing for an additional circuit judge for the second judicial circuit of Clay County, and regulating the practice in said circuit, provides as follows : “It shall not be reversible error that any case is tried in the division to which it has not been specially assigned. ’ ’ In Blackstad Mercantile Co. v. Bond, 104 Ark. 45, the court had under review the above statute, and after setting out section 6, we said: “It is manifest from the section just quoted that the jurisdiction of the court does not depend upon the proper assignment of a case to either division. The statute expressly declares that it shall not even be reversible error ; that is, that it shall not affect the validity of the proceedings even on a direct attack by appeal for any ease to be tried in a division to which it has not been assigned. ’ ’ (3) The court, therefore, did not err in sustaining the appellee’s demurrer to appellant’s complaint, even if it'was based upon appellee’s complaint. For the judgment rendered against appellant in favor of the appellee on appeal, by the circuit court, under the above statute and decision construing'the same, could not be set aside upon the allegations .mentioned in appellant’s complaint. The judgment of the circuit court dismissing appellant’s complaint is correct, and it is, therefore, affirmed.