
    BERKENSTOCK VS. WEAVER.
    In an action for damages for not receiving and paying for goods accord ing to contiact, an instruction to the jury that the measure of damages was the difference between the contract price and the market value of the goods was held correct.
    Error to Common Pleas of Lehigh County. No. 128 July Term 1880.
    The charge of the Court was as follows, per
    Harvey P. J.
    Gentlemen of the Jury: This is a suit brought by A. H. Weaver and William Walter, plaintiffs, against John Berkenstock, defendant, to recover the sum of $26. with interest, alleged to he due the plaintiffs hv the defendant upon a certain contract made between them. It is alleged on the part of the plain- ’ tiffs that in the month of August, 1875, at Coopersburg, in this county, one of the plaintiffs A. H. Weaver met John Berkenstock, the defendant, and it was there agreed that Messrs. Waiver and Weaver should supply Berkenstock from forty to sixty bushels of plums at $3 a bushel. That is the contract as alleged by the plaintiffs. If you find that to be the contract, and that the contract price, then I say to you that the plaintiffs had a right to furnish to the defendant from time to time any number of bushéls of plums, between' forty and sixty bushels; and if the defendant' changed his mind as to the receipt of the plums he should have notified plaintiffs in time and before any damage accrued to them, that he would not accept and did not need any more plums than those, already delivered. On the part of the defendant it is alleged and contended that the contract was, there were to be from twelve to éighteen bushels of plums delivered, and that those'plums weré delivered, and that .there was no contract for any more. If the contract made at Coopersburg was as alleged by the 'plaintiffs, then they had a right under the trrms of ihat 'contract’, unless they received legal notice in time to prevent damages, to deliver from forty to sixty bushels of plums. If the contract is as contended for by .the.defendant then' it was executed and complete upon the delivery of the first lot. And to ascertain which of the parties is right in Court you must weigh the evidence and come to a conclusion from it. In weighing the evidence you are, first, to take the rule that the burden is upon the plaintiffs to establish by evidence stronger than the countervailing proofs of the defence, that the contract is as they allege it to be, and they must prove it -by witnesses who are credible, whose credibility is to be judged by their appearance on the stand, by the reasonableness of their story and the evidence in the cause. The same rule applies in judging of the credibility of the witnesses on the part of the defence. You will also consider in weighing the proof that the positive testimony of one man outweighs the negative testimony of another. If one man testifies that he thinks such and such a thing took place on a certain day, and one testifies that such a thing took place positively on that day, the evidence of the latter is to be believed sooner than that of the former. So as to numbers. Where one witness testifies to one thing and three witnesses to another, the evidence of the three witnesses is entitled to greater weight than that of one witness. You will observe that rule. I will call your attention to what took place at Philadelphia when the first lot of plums was delivered to tire defendant. Mr. Berkenstock testifies that he did not want from forty to sixty bushels of plums to use in his hotel; that he did not want them shipped at once, but wanted them in two lots. MrBerkenstock testifies that he wanted from twelve to eighteen bushels, and he has not denied that portion of the testimony of Mr. Weaver, that they were to be delivered in two lots. Did the defendant want the eighteen bushels delivered in two lots, or did. lie want from forty to sixty bushels, which Mr* Weaver alleges he was to furnish him, delivered to him in two-lots ? Did the defendant give any notice that he would receive no more, or did he treat the contract as a finality and say nothing at all as to the balance ? Mr. Walter testifies that Mr. Berkenstock asked him distinctly when he would bring-the other lot, to which Mr. Walter replied “on Tuesday next,”1 whereupon Mr. Berkenstock said : “Do not allow it to be later in the week, for it makes too much work for us.” Did that conversation take place ? If it did, what weight will you give to it ? ' As to whether the quantity of plums was to be twelve, or eighteen, or forty, or sixty bushels, as testified to by by the parties in this action, you will take all the proofs in the cause and ask yourselves, did the plaintiffs establish their contract by the weight of evidence, or did the defendant establish his contract, or was so strong an impression produced upon your minds that you cannot say which was the contract, between the parties to this action, for if you cannot say which there is an equipoise of proof, and the plaintiffs fail in the cause. [If you believe the evidence establishes the contract as alleged by the plaintiffs, your next inquiry will be, what damages will you assess. It is the uncontradicted evidence in the cause that twenty-six bushels of plums were taken to Philadelphia, delivered at the depot in pursuance of the original contract, as alleged by the plaintiffs, and that Mr. Berkenstock had notice that the plums were there, and that he did not receive them; that afterwards he was told again and again, and he refused to accept them, and that Mr. Walter went and sold the plums. If you believe that these plums were to be delivered, as contended by the plaintiffs, then the plaintiffs can recover for the last invoice of plums the difference between the contract price and the market value of the plums on that day in the City of Philadelphia. What was the market value? If the market value of those plums on that day was $2. a bushel then the plaintiffs are entitled to recover $26., and if the market value is $2.50 a bushel, then they arc entitled to recover but $13.] And that is the question to be decided by you. If .you do not find the contract to be as alleged by the plaintiff^ then your verdict will be generally in favor of the defendant.
    Charge excepted to before verdict.
    EDWARD HARVEY, P. J. [seal.]
    Verdict for plaintiff.
    Berlcenstock then took this writ of error, assigning the portion of the charge in brackets for error.
    John D. Stiles & Son, for- Berkenstock,
    argued that a resale at the risk of the vendee was the only mode of estimating the damages in a case like this, and cited: Girard vs. Taggart, 5 S. & R. 19; Coffman vs. Hampton, 2 W. & S. 377; Andrews vs. Hoover, 8 W. 239.
    C. J. Erdman and G. H. Rupp, Esqs., contra,
    argued that a resale was the usual, but not the only means of determining the difference between the contract price and the market ' value : Andrews vs. Hoover, 8 W. 239; Sedgwick on the Measure of Damages, 281; Mayne on the Law of Damages, 78.
   The Supreme Court affirmed the judgment of the Common Pleas on March 14, 1881, in the following opinion :

Per Curiam :

We think the law was correctly given to the jury by the learned President, and the measure of damages stated by him in accord with the authorities.

Judgment Affirmed.  