
    Moffett-West Drug Co. vs Byrd.
    
    
      1. Instruction — Not reviewable unless exceptions saved.
    
    Objections to instructions will not be considered by this coui where no exceptions were saved in the trial court.
    2. Breach of contract — Pleading—Damages.
    Where suit is brought for breach of contract, plaintiff may sho as damages, his loss of time of himself and one whom he hi hired by reason of the contract, under an allegation of “lo of time occasioned by defendants failing to comply with sa agreement. ”
    
      3. Depositions — Motion to suppress exhibits.
    
    Defentant moved to suppress certain exhibits to one of its ov depositions. This was wholly in the discretion of the con and it was not error to refuse to suppress them.
    
      4. Breach of Contract — Elements of Damages.
    
    There was evidence showing the difference between the contr; price of the goods in St. Louis and the market value of t goods at the time of delivery at Chelsea, I. T., which wot account for most of the damages found by the jury and thi was sufficient evidence in relation to the contract and a brea of same, for the submission of the case to the jury.
    5. Breach of Contract — Instruction—Damages.
    Suit was brought for the recovery of $100.00 paid upon a c< tract and for damages for its breach. Defendant asks ti the jury be instructed that until a breach is shown, the pla tiff would not be entitled to recover said sum of $100.00. 1 court instructed the jury that until a breach was shown pla tiff would be “ only entitled to recover the $100.00 paid on contract, but if a contract and a breach are shown, the pi; tiff is entitled to recover such other amount of damage as may find from the evidence he has sustained. ” Held, erroneous.
    Appeal from the United States Court for the Nor ern District.
    
      Wm. M. Springer, Judge.
    Suit by L. A. Byrd ys Moffett-West Drug Co. Judg-uent for plaintiff. Defendant appeals.
    Affirmed.
    j This was an action instituted on the 2d day of July, l. D., 1895, before Robert L. McClure, United States com-lissioner for the Northern district of the Indian Territory, t Yinita, by the appellee (plaintiff below), against the ap-ellant (defendant below), alleging that the plaintiff pur - hased from the defendant a stock of drugs of the value of 555.85, the terms of payment being $100 cash when the rder was given and purchase made, $100 payable on the elivery of the goods, balance in two equal payments'; notes > be given for 60 and 90 days, one-half each secured by a ortgage on the stock of goods purchased and the store hiding at Chelsea, Ind. Ter., in which the goods were to 3 placed, or mortgage on live stock and other property. Laintiff alleges that he paid the $100 cash, and upon the ■rival of the goods at Chelsea, Ind. Ter., tendered the ad-tional cash amount of $100 ; but the defendant refused to sliver said goods to the plaintiff, or any part thereof, aintiff further alleges that he further offered to comply ith the contract of purchase by executing notes and mortg-es as above set forth. Therefore he claims damages for each of contract, for loss and injury which his credit has stained by defendant’s refusal to comply with its agree-mt, by loss of time which had been occasioned by said each, by the difference in the contract price of said goods d carriage to Chelsea, Ind. Ter., and the retail price of d goods less expense of marketing same at Chelsea, Ind. r., and demands judgment and damages for the sum of )0 and costs. On the same day he filed an affidavit and Ind for attachment. On the 11th day of July, defendant Id an answer to the complaint, denying that the plaintiff has a just and lawful claim founded upon a breach of contract to deliver goods, denies that the plaintiff is damaged in the sum of $300 or any other sum, and asks that defend ant be discharged with reasonable costs and $150 damages against plaintiff for his improperly securing the issuance o: said attachment. On the same day, the case was tried be fore the commissioner and a 'jury, who returned a verdic for $170.40, and found the issue of attachment for the plain tiff ; whereupon judgment was rendered upon the verdict and for costs, amounting to $50.95. Defendant appealed On August 6, 1895, defendant filed his affidavit and bond Appeal granted, and bond approved. On the 25th day ol February, 1896, the defendant moved that Exhibits C, D, 1 and F--1 to the deposition of W. G. Sludder, taken on th part of the defendant, be suppressed, which motion, o March 5, 1896, was sustained as to Exhibit D, and overrule as to the balance of the exhibits. On the 10th day of Marcl 1896, the plaintiff filed an amendment to his complaint, praj ing for judgment for $100 paid to defendant, damages fc loss of credit by reason of the defendant’s refusing to con ply with its contract in the. sum of $100, also loss of tin occasioned by the defendant’s failure to comply with tl said agreement in the sum of $25, also the difference in tl contract price of said goods and the value of said goods Chelsea in the sum of $75, and for costs of suit. On tl same day, the case was tried before the Honorable Willia M. Springer and a jury, who returned a verdict for $10 with interest at the rate of 6 per cent, per annum from M? 21, 1895, and damages, $75, and costs, and attachment su tained. On the 12th day of March, motion for a new trii was made and overruled by the court, and judgment renda ed upon the verdict. Defendant excepted, and prayed fl appeal to the next term of the court of appeals of the ll dian Territory, and 30 days was given defendant to file 9 bill of exceptions. On April 8th, by agreement betwel ¡ounsel, 30 days additional was granted to file a bill of ex-leptions ; and on the 5th. day of May the bill of exceptions vas signed and sealed, and made a part of the record, and Lied. Bond for appeal was filed on March 31, 1896. The lili of exceptions preserves the evidence taken on the trial, nd the instructions requested by the defendant to be given o the jury which the court declined to give, but gives the econd instruction requested in a modified form. From the vidence it appears that the plaintiff telegraphed the de-endant that he wanted to purchase a stock of drugs from hem, and defendant answered that they would send their raveling salesman, Mr. Mittong, to Chelsea, Ind. Ter., to ee plaintiff ; and they did so, on or about April 16, 1895. ’he plaintiff and Mr. Mittong agreed upon the goods to be urchased, and how they were to be paid for. The prices rere to be fixed in St. Louis, and the plaintiff was to pay 100 cash,- — $100 when the goods should arrive in Chelsea, nd the balance in two equal payments, at 60 and 90 days fter date, for which notes were to be executed, to be seared by mortgage on the stock of goods thus purchased nd the store building in which the same were to be placed, laintiff paid $100 cash on account to Mr. Mittong, and took is receipt, and on the same day Mr. Mittong sent to de-jndant the order for the goods. In the letter accompany - Lg the order, Mr. Mittong writes defendant as follows: If you think that you want this order on these terms, I fink it would be advisable for you to have mortgage made it and forwarded to me, and I will go there, and get it gned and fixed up ; ” and in the same letter writes further s follows: “ I did not ask him, but presume if you think Lat stock and building is not sufficient security, that he ould not object to giving us a mortgage on live stock.”
    
      John B. Turner and James Burclchalter, for appellant.
    1. The court erred in permitting Byrd to prove special damages by testifying that he had made special preparation to receive this bill of goods and go into the drug business by erecting a building at Chelsea, for the reason that the damage is too remote, and he had not al leged them as special in his complaint. The court erred n permitting Byrd to prove the hiring of Dr. Matthews anc the amount paid him as special damages. The court errec in allowing Byrd to testify as to his own loss of time. Boone on Code Pleading, ( Pony), § 18 ; Bunch vs Potts 57 Ark. 264.
    2. The court erred in permitting plaintiff to rea( certain exhibits to the deposition of defendant’s witness Such exhibits being confidential communications. 1 Thomp son on Trials, 570 ; Commercial Bank vs Union Bank, 1 N. Y. 203.
    3. The measure of damages, if the seller fails to de liver the goods, is the difference between the contract pric and the market value of them at the time and place of de livery. 5 A. & E. Enc. of Law, 30 ; Hanna vs Harter, Ark. 397 ; Bunch vs. Potts, 57 Ark. 275 ; Sedgewick on th Measure of Damages, ( 7th Ed. ), 578, note a.
    
      W. H. Tibbils and Denison & Maxey, for appellee.
    No brief is on file for appellee.
   Townsend, J.

(after stating the facts ). The appe lant has filed eight specifications of error, which are as fo lows, to wit: “(1) The court erred in permitting Byrd i prove special damages by testifying that he had mac special preparation to receive this bill of goods, and go ini the drug business by erecting a building at Chelsea. (l In permitting Byrd to prove special damages by testifyir that a part of his especial preparation to receive tke,c goods consisted in hiring Dr. Matthews, and what he pa: him. (3) In permitting Byrd to prove special damages by testifying that part of his special damages consisted in nine days’ loss of individual time, preparing for and awaiting the arrival of these goods. (4) In admitting certain testimony. (5) In permitting plaintiff to read to the jury Exhibits C, E, and F-l to W. G-. Sludder’s deposition, and overruling defendant’s motion to suppress the same. (6) In refusing to instruct peremptorily for defendant on the evidence. (7) In refusing to give defendant’s instruction ( No. 2 ), which is as follows: ‘ If you find that there existed between plaintiff and defendant a contract, then the burden of proof is upon the plaintiff to show by a fair preponderence of the evidence a breach of said contract by defendant refusing or neglecting to comply with the terms thereof, and to show what damage, if any, he sustained by reason of said breach; and, until plaintiff has shown the contract and its breach, he is not entitled to recover the $100 paid on the contract or any other amount. ’ (8) In modifying instruction No. 2 so as to read: ‘If you find that there existed between plaintiff and defendant a contract, then the burden of proof is upon the plaintiff to show by a fair preponderance of the evidence a breach of said contract by defendant refusing or neglecting'to comply with the terms thereof, and to show what damage, if any, he sustained by reason of said breach ; and, until plaintiff has shown a contract and its breach, he is only entitled to recover the $100 paid on the contract; but, if the contract and a breach are shown, the plaintiff is entitled to recover, in addition thereto, such other amount of damages as you may find from the evidence he. has- sustained.’ ”

Testimony-Exceptions.

So far as the first specification of error is concerned, it is sufficient answer to say that no exception was reserved r to the admission of the testimony, but, if there had been, no sum whatever was proven as an item of damages in that respect.

Breach of Contract-Damages.

Depositions— Right to read exhibits.

It is contended by appellant that no allegation of special damage in his complaint covered the items mentioned in specifications of error 2 and 4 ; but he concedes that the loss of the individual time of plahrtiff is alleged as special damages in specification No. 3. The allegation in the complaint is ‘ ‘ loss of time occasioned by the defendant's failure to comply with the said agreement. ” This allegation could cover the time of Dr. Matthews, as well as plaintiff’s individual time, and also plaintiff’s time on his trip to Yinita, to which specifications of error Nos. 2, 3, and 4 refer. But appellant argues that all such damages are too remote even had they been specially alleged. We cannot concur in this view. The court was particularly careful to limit the time to a period between the 6th day of May and the 20th day of May, it being the time that elapsed between the arrival of the goods at Chelsea and the instituting of this action. These items of damage, though small in amount, were the. natural and proximate result of the shipment of the goods under the contract of purchase, and their arrival at destination, where plaintiff was to receive them.

Specification of error No. 5 goes to the refusal of the court to suppress Exhibits C, E, and P-1 to W. G. Sludder’s deposition. This was a. deposition taken by appellant itself of a trusted employe, known as its “credit man,’’tobe used on the trial of this cause. This was wholly in the discretion of the court, and if, in the opinion of the court, these exhibits threw light upon this transaction, it was not only in his discretion, but eminently proper that he should admit them.

Specification of error No. 6 need not be considered. That there was evidence of damage that properly went to I the jury there can be no question. There was evidence that was properly admitted showing the difference between the contract price in St. Louis and the market value at Chelsea, End. Ter., at time of delivery, which would account for almost all the damage found by the jury in their verdict; and the question whether there was a contract existing between the parties and a breach of the same was fully and fairly submitted to the jury by the court.

Damages_ ?uryí10ns for

The seventh and eighth specifications of error can very properly be considered together. They relate to the refusal of the court to give instruction No. 2 as requested by appellant, and the giving of the same in a modified form. The court gave the following, as requested by appellant’s request No. 2: “If you find that there existed between plaintiff! and defendant a contract, then the burden of proof is upon the plaintiff to show by a fair preponderance of the evidence a breach of said contract by defendant refusing or neglecting to comply with the terms thereof, and to show what damage, if any, he sustained by reason of said breach ; and, until plaintiff has shown a contract and its breach, he is ” — and refused to give the following words at the close of appellant’s request No. 2, to wit, “not entitled to recover the $100 paid on the contract or any other amount, ” and in place of them substituted the following words, to wit, “only entitled to recovered the $100 paid on the contract, but if the contract and a breach are shown, the plaintiff is entitled to recover, in addition thereto, such other amount of damages as you may find from the evidence he has sustained. ’ ’ On page 39 of the transcript, during the examination of the appellee, appears the following:. ‘1 Counsel for the defendants offer to confess judgment for the one hun-Ired dollars, which offer plaintiff, by his counsel, refused to accept. The court:. The records will show that the plaintiff has made a claim for this $100, and, if they should sue for it hereafter, this suit will be a bar to the other suit.’’ This action of the court, which is fully authorized by the Liberal statute of amendments of Arkansas, and now in force In this territory, amounted to an amendment to plaintiff’s complaint, and justifies the charge of the court as made in giving plaintiff’s request No. 2 as modified. It is perfectly evident from an examination of the letter of Mr. Mittong to the appellant when the order for these goods was sent in to it that both he and the appellee had come to a full understanding in regard to the purchase of these goods and terms of payment; and, had appellant fully advised its counsel of that correspondence, it is very questionable if this suit would ever have been necessitated ; but when they acted upon the order, and shipped the goods, and then commenced their objections to the security agreed upon, we think the appellee was justified in the conclusion that appellant did not intend to carry out the contract. The terms of the contract should have been settled before the goods were shipped, if appellant did not propose to accept it. We are of the opinion from an examination of all the evidence that substantial justice has been done, and therefore the judgment below is confirmed.

Clayton and Thomas, JJ., concur.  