
    (108 So. 508)
    KERLIN-PATTERSON LUMBER CO. v. EUFAULA HARDWARE CO.
    (4 Div. 265.)
    (Supreme Court of Alabama.
    April 15, 1926.
    Rehearing Denied May 20, 1926.)
    1. Evidence <S=>486.
    Under express provision of Code 1923, § 7656, testimony as to market value is opinion evidence.
    2. Evidence <&wkey;489 — Admission of testimony that goods which buyer had ordered and refused to accept could not have been sold in open market at price agreed upon at place of delivery, but that market value at time and place of breach was one-half of cost price, held not erroneous.
    In action for damages from refusal of buyer to accept goods ordered, admission of testimony that he could not have gone into open market and sold goods to anybody at contract price at place of breach, and that market value at time and place of breach was one-half of cost price, held not erroneous.
    3. Appeal and error <&wkey;IOII.(l).
    Judgment of court without jury, based on conflicting evidence, has force and effect of verdict of jury, and will not be disturbed on appeal unless manifestly against evidence.
    4. Sales &wkey;?383.
    Judgment of trial court without jury, awarding damages for refusal of buyer to accept goods ordered, held sustained under conflicting evidence.
    5. Appeal and error &wkey;>l078(l).
    Errors assigned which are not argued in brief of appellant will be considered waived.
    <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Circuit Court, Barbour County ; J. S. Williams, Judge.
    Action by the Eufaula Hardware Company against the Kerlin-Patterson Lumber Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326.
    Affirmed.
    See, also, 211 Ala. 687, 101 So. 623.
    McDowell & McDowell, of Eufaula, for appellant.
    Plaintiff was not entitled to recover more than' nominal damages, and the judgment of the court was error. Patterson v. Daniels, 205 Ala. 520, 88 So. 657; Kerlin-Patterson L. Co. v. Eufaula Hdw. Co., 211 Ala. 687, 101 So. 623; 24 R. C. L. 117; Bagby v. Harris, 9 Ala. 177; Taylor v. Howard, 110 Ala. 468, 18 So. 311; Buist v. Guice, 96 Ala. 255, 11 So. 280 ; 24 Am. & Eng. Ency. Law (2d Ed.) 1114-1116;- 35 Cyc. 591. Evidence that plaintiff could not have gone into the local market and sold the pipe at the price agreed to be paid by defendant was improperly admitted. Bank v. Chaffin, 118 Ala. 246, 24 So. 80; Lallande v. Brown, 121 Ala. 513, 25 So. 997; 5 Mayfield’s Dig. 397.
    G. B. Comer & Son, of Eufaula, for appellee.
    The judgment here has the force and effect of a jury verdict. Wallace v. American, etc., Oorp., 20 Ala. App. 642, 104 So. 776.
   MILLER, J.

This is a suit by Eufaula Hardware Company against the Kerlin-Patterson Lumber Company on the common counts, and for damages for a breach of a contract entered into by them of purchase and sale of 2,200 feet of one-inch black pipe at an agreed price of 11 cents per foot, and 1,500 feet of 1%-inch black pipe at an agreed price of 16 cents per foot, which plaintiff ordered for defendant by wire, and which defendant without just cause refused to accept and pay for when it arrived at Eufaula. It avers the agreed price was $482.

The cause was tried by the court without a jury. It rendered a judgment in favor of the plaintiff for $296.92, and this appeal is prosecuted by the defendant from that judgment. This is the second appeal to this court in this case. Kerlin-Patterson Lumber Co. v. Eufaula Hdw. Co., 211 Ala. 687, 101 So. 623.

The defendant contracted to purchase, and the plaintiff to sell it, 2,200 feet of black pipe, one-inch, at 11 cents per foot, and 1,500 feet of 1%-inch black pipe at 16 cents per foot. The plaintiff had to order it, which it did by wire, and defendant was to pay for it when it reached Éufaula. The piping came to Eufaula as ordered under the contract, and the defendant declined to accept on August 10, 1923, and pay for it, and it remained in possession of the plaintiff at Eufaula.

The appellant in brief states on this trial:

“The only question arising and to be determined, viz. proof by the plaintiff of the difference between the market price or selling value of the pipe in question at the time and'place of the default, or at the nearest available market, and the agreed contract price, so as to determine the amount of damages the plaintiff might be entitled to, if any.”

The rule for ascertaining the damages, if any, in actions of this kind, was declared in Patterson v. Daniels, 205 Ala. 520, 88 So. 657, and it was quoted with approval in this case on former appeal (211 Ala. 687, 101 So. 623), and need not be repeated here.

Bullock, of plaintiff’s corporation, testif5ring for the plaintiff, stated:

“When he [defendant] refused to take it at the price, judging from the way I kept it, it is not worth .anything; I have been unable to sell it.”

There was evidence tending to show there was no demand at that time at Eufaula for that quantity of black piping. The plaintiff testified, over objection of the defendant:

“That he could not have gone into the open market here and sold that pipe to anybody at the price he agreed to sell it to him [defendant].”

The court did not err in this ruling, and the defendant cannot justly complain at this answer. This witness afterwards testified the market value of this piping at Eufaula was at the time of the breach of the contract one-half of the cost price. The defendant was not injured by this ruling. It must be remembered that testimony as to market value is in its very nature opinion evidence. Our statute expressly so states. Section 7656, Code of 1923, and authorities there cited.

This case was tried by the court without a jury. The witnesses were examined orally in the presence of the court. The judgment of the court on such testimony has the force and effect of the verdict of a jury, and should not be disturbed on appeal unless manifestly against the evidence. The evidence as to the damages sustained by plaintiff by breach of the contract by the defendant is in striking conflict; and there is sufficient evidence to support the judgment. The conclusion of the trial court is not plainly contrary to the great weight of the evidence, but it is supported by much evidence, and its judgment will be afiirmed. Bell v. Blackshear, 206 Ala. 673, 91 So. 576, headnote 3; D. & S. Motor Co. v. State, 212 Ala. 371, 102 So. 805, headnote 5.

Practically the only question presented by the record and argued in briefs by the parties is this disputed question and issue of fact as to the damages, if any, sustained by the plaintiff, and the conclusion reached thereon must result in an affirmance of the case.

[5 ] .There are many errors assigned. When they are not argued in brief of appellant they will be considered waived, and we have passed on only those insisted on and urged in brief and argument. L. & N. R. R. Co. v. Jones, 211 Ala. 158, 99 So. 919, headnote 3; Moore v. First Nat. Bank, 211 Ala. 367, 100 So. 349, 34 A. L. R. 526, headnote 5.

The judgment is affirmed.

Affirmed.

SAYRE, GARDNER, and BOULD-IN, JJ., concur.  