
    R. S. Millar v. Hilliard & Wade.
    Tlie measure of a verdict for breach of contract should be the damage that the injured party may reasonably have incurred. And the Court will not restrain the discretion of the jury unless it clearly exceeds this limit.
    Plaintiff balced certain bread, under directions to go on baking until ordered to stop, and told the defendant his bread was ready; the latter refused to take it, saying he clid not want it then. The plaintiff’s remedy was damages for breach of contract, not an action for goods sold and delivered; and his book entries were not admissible in evidence. (IVoie.)
    But if there had been a delivery and acceptance, under a similar order, in a previous transaction not yet settled, that might perhaps constitute a constructive delivery.
    Before Earle, J., at Charleston, May Term, 1839.
    This was an action of assumpsit, for not accepting and paying for a quantity of pilot bread baked for the defendants.
    The report of the Judge below was as follows:
    “ The plaintiff is a baker; and had baked for and delivered to the defendants, who were extensive dealers, large quantities of bread, which were sent for and received by the defendants at their own premises. On February 10, 1838, previous transactions remaining unsettled, the defendants gave an order to the plaintiff ‘ to go on and bake as fast as possible, until he was ordered to stop.’ Upon this order the plaintiff continued to bake, without receiving orders, to the contrary, until he had four hundred and seventeen barrels ready for delivery, of which notice was given to the defendants, who replied that they did not want the bread then, but might want it in a month’s time: at the end of that period a second notice wTas given by the plaintiff, and the defendants persisted in refusing to receive the bread. There was no price agreed on, and no specific quantity ordered.
    “ The plaintiff employed an extra number of hands, and within twenty days after the order, the whole quantity for which payment was claimed, was packed, weighed, marked, and ready for delivery. When refused by the defendants it was storéd away: no attempt was made to make sale of it, and it was retained,by the plaintiff until rendered worthless by the weavil.
    “ The only question was, what damages the plaintiff should recover. The defendants had paid eight cents per lb. for the bread which they had received of the plaintiff; and at the time when the four hundred and seventeen barrels should have been accepted, from the middle to the last of March, such bread might have been sold for eight or nine cents. In the opinion of one witness, four hundred barrels might have been disposed of at eight and a half cents. The market was fair for such bread up to July, when it became dull, and remained so during the season. Pilot bread well baked and packed in February, would continue nearly or quite as good until June; and one witness sold in July bread baked in February, and it was sound and good. It seemed from the evidence of a judicious auctioneer, that bread sold at auction would not be apt to bring more than a very reduced price.
    “ The plaintiff doubtless retained the bread under the impression that it belonged ,to the defendants, and that he was entitled to the full price, as for an article delivered and accepted. I gave the jury full instructions on the question of damages, which are not excepted to, and therefore need not be repeated. The plaintiff, I thought, should recover the difference between the price which the defendants were to pay, (I suppose eight cents, the price of what he had before received.) and what the bread would have brought in market, allowing a reasonable time. Had the plaintiff sold the bread, at whatever loss, he might have recovered the difference in price. If, indeed, the large quantity ordered by the defendants had produced a glut in the market, which prevented the sale of it, then the plaintiff might recover, perhaps, the entire value. Of- this there did not seem to be any proof. The jury found for the plaintiff a sum nearly equal to the full price of the bread.”
    
      To this it may be proper to add the testimony of Four-geaud, also a baker, whom the defendants had deceived in the same way, that he had sent part of his bread to Key West, and lost thirty per cent, on it; but had lost nothing on the rest; but that an auction sale in November or October would not bring more than two or three cents.
    Verdict for the plaintiff, two thousand twenty-nine dollars and thirty-six cents.
    The defendants appealed, and moved for a new trial, because the damages far exceeded the loss that would have accrued if the plaintiff had sold within a reasonable time.
    
    
      
       This case had been before the Appeal Court at a previous term, (Charleston, February, 1839,) on substantially the same evidence; (only that nothing appeared on the first trial of 11 previous transactions remaining unsettled ’ ’ between the parties ;) and the Court, per Evans, J., delivered the following opinion on the points then put in issue.
      “This was an action of assumpsit. There were various counts in the declaration for work and labor, money paid, and for goods sold and delivered. The whole question arose out of the following account:
      Messes. Hilhaed & Wade,
      To R. S. Millak.
      1838, April 3, Barrel, - 180 lbs. 24 to 1, §7 50
      8, Keg of Butter Crackers, 47, 10, - 4 70
      9, Barrel of “ “ 97, 10, - 9 70
      qO u tí u 94, 10, - 9 40
      20, 41V bbl. Pilot Bread, - 33,301 lbs. 8, - 2664 08
      §2695 38
      “ The controversy related to the last item of the account. The only count in the declaration on which it could be recovered was the last, which was for goods sold and delivered. It appeared from the evidence, that on February 10, the defendants directed the plaintiff to bake a supply of bread for them. The general direction was to go on and bake until they directed him to quit. About the 20th, the plaintiff was notified that the defendants declined to take the bread, and about that time, the plaintiff tendered the bread to defendants, and they refused to take it. The witness said he tendered it, but I do not understand he did more than to inform the defendants the plaintiff was ready to deliver it. The bread was at the time in Millar’s warehouse, where it has remained ever since. It has never been out of his possession. On the trial, the plaintiff produced his book of accounts, wherein he had charged the defendants with the bread, but admitted he had never delivered it. The jury found a verdict for the whole amount of the plaintiff’s account, deducting a small discount. There was a great deal of testimony given at the trial, but the foregoing statement presents so much, of the case as is necessary to the understanding of the points to be decided. These are, 1, Was the book of entries properly admitted ? 2, Could the plaintiffs, on the facts stated, reoover the full price of the bread, on the count in his declaration for goods sold and delivered ?
      “The books of a tradesman, mechanic, or shop-keeper, are in general received as evidence of the sale and delivery of goods ; but this must be understood in reference to those cases where the contract has beeh fully executed by the seller. If the action be for non-performance of the contract, then he must recover by proving his contract, and the breach by defendant. In such case, the matter in controversy is not the subject of book account: the plaintiff must make out his case by witnesses. The Judge did allow the book to be produced, and the plaintiff to prove the entries ; but upon his saying the bread had not been delivered, the jury were instructed that the book proved nothing, and that they must look to the other evidence to establish the plaintiff’s right to recover. I do not therefore think there is any thing in this which would authorize us to grant a new trial.
      “ On the second ground, I would remark that, in order to maintain indebitatus as-sumpsit, the plaintiff should prove that he at least has performed his part of the contract, or done that which is equivalent ;• whilst a contract is incomplete, he must sue on the special contract and recover for a breach. If A. sells to B. a horse or a negro, and deliver him, indebitatus assumpsit will lie for the price. But if B. refuse to receive the horse, the action must be to recover damages for the non-performance. He cannot sue for the price without delivery, or something which is equivalent to delivery. By tender, I understand some such offer as puts it in the power of the other party to take immediate possession of the thing tendered. If there be a tender of money, the money must in general be produced ; and the money must be paid into Court, so that the other party may take possession of it. If A. sells to B. a tract of land, to enable him to recover the price as on a contract; executed, he must execute and deliver the title, or must have produced and offered it to the defendant, and must follow this up by depositing the title in Court, so that the defendant may take it out. 'In the case of Smith vs. Chance, (2 B. & A. 753,) Hohjoyd, J., said, “A party cannot maintain an action for the price of goods sold and delivered, until he has either delivered them, or done something equivalent to delivery, as for instance, if he has put it in the vendor’s power to take away the goods himself.” If A. sells a horse to B., and he goes to B. and tells him he is ready to deliver him, or even say I tender you the horse, but the horse is in the seller’s stable, and not present, so as to enable the vendor to take possession; this would not operate as a transmission of the title to the purchaser, so as to enable him to maintain trover against, the vendor; or if the seller had produced the horse, but, on the vendor’s refusing to accept him, had carried him home and put him back into his stable, and there kept him; this would not be delivery, or its equivalent. To make atender effectual, it seems to me, the seller must, in general, abandon the possession. If he retains possession, the title to the property is not changed, and the vendor’s remedy is for damages for the non-performance of the contract. The error has arisen from confounding an offer to perform, which gives the vendor a right of action for non-performance, with such a tender as is equivalent to performance, which vests the property in the vendee, and gives the vendor an action for the stipulated price. In this case it is not pretended, that the plaintiff did more than to inform the defendants the bread was ready to be delivered to them. It was then, and is now, in his possession, and at no period could Hillard & Wade have possessed themselves of it without Ms consent. As the contract was never executed, he can recover damages for the non-performance only, which the witness thought was about thirty per cent. It is not intended to intimate any opinion as to the amount he ought to recover. If the contract be proved to the satisfaction of the jury, they ought to compensate the plaintiff to the full amount of the injury he has sustained. The extent of this injury is uncertain. It may sometimes he equal to the whole value of the property; but in this case the plaintiff might have made it much less hy shipping to ICey West, as one of the witnesses did ; or he might have reduced it to certainty by selling at auction, as was done in tho cases reported in 1 M’Cord, 298, and 5 Johnson, 405. Upon the whole, I am of opinion, the plaintiff cannot recover, on the counts in his declaration and the evidence given at the trial, the full price of the bread. The motion for a new trial is therefore granted ; and the plaintiff lias leave to amend Ms declaration, by adding a count or counts, on the special contract. ’ ’
      
    
    
      
       See 3 Rich. 221; 5 Rich. 252; 6 Rich. 194; 7 Rich. 196—as to tendor. An.
      
    
   Curia, per Earle, J.

The present motion is to set aside this verdict and grant a new trial, because the damages are excessive in amount, and arbitrary, as not being formed on any just principle or standard, and not sustained by any sufficient proof. The power of this Court to grant a new trial in such cases is unquestionable, and has been occasionally, though rarely, exercised. Where there has been no misdirection in point of law, such a power should be exercised with great caution, and only in very flagrant cases, else in the process of time, the judgment and opinion of this court will come to overrule and supercede the judgment and opinion of the jury, on questions of fact, of which they are the constitutional and proper judges. As a general rule, in cases of tort, excess of damages is never a ground for setting aside a verdict; though a case now and then has occurred, where the damages have been so extravagant as to produce a conviction of undue partiality or prejudice. In actions on contracts, there is, in all cases, a just and proper standard by which the damages should be assessed; and when it is obvious that the jury have mistaken, or disregarded that standard, and have given damages for an injury which has not been sustained, or have given compensation in damages extravagantly beyond the injury proved, there is then fair ground for the interposition of the Court. Is the case- before us one of that description %

In the first place, there was no misconduct on the part of the Circuit Court. The jury, fully and properly instructed, (for thére is no exception taken on that ground;) have found an amount of damages beyond what the Court expected. It is clear that they did not mistake the standard of damages laid down by the Court; is it clear that they have wholly disregarded it, or that they have done more than a just latitude of discretion would allow them, in exercising their own judgment, as to the price or value of the bread in market, at the time the defendants finally refused to take it %

There is no doubt, in fact, that the plaintiff has sustained damages beyond the verdict; that he has. sustained them without actual fault on his part, and in consequence of the defendants’ breach of their agreement; a breach accompanied with striking circumstances of mala fides. Now, in assumpsit, it is true, the plaintiff cannot recover for ideal, nor speculative, nor in general, perhaps, for consequential damages. But he may recover, and ought to recover, the actual damages he did sustain, if they were the natural or probable result of the defendants’ breach. The whole of the bread ordered by the defendants has been lost to the plaintiff; and it is objected that they ought not to pay for it, because the plaintiff ought to have sold it; that he might have sold it at an inconsiderable loss, and that they should not suffer for his default, or for his ignorance of his rights. This is true, and we should have been better satisfied if the jury had estimated the bread- at a -higher price than they have done. But on that point there was conflicting testimony. Mr. Forgeaud, another baker, whom the defendants had deceived with the same bad faith, shipped and sold instantly, on their first refusal. They said to the plaintiff, we may perhaps take the bread at the end of the month. He waited, and they again refused. But warm weather came on, and the bread being in barrels, soon became injured. If the plaintiff had shipped to Key West when Forgeaud did, thé market there might have ' been glutted and neither could have sold. Had he offered four hundred and seventeen barrels for sale in Charleston, in the spring, at auction, the evidence was, that it would have brought only a very reduced price, and this was in consequence of the large quantity ordered by the defendants, and also in consequence of a ship arriving from abroad with the same article. With full and specific instructions that the plaintiff was entitled to recover the difference between the price agreed to be paid and that which the article would have brought in market, allowing a reasonable time to make the sale, the jury have estimated that the bread would have probably brought at auction about two cents per pound, and have found, for the plaintiff, the balance. A majority of the Court, upon full and mature consideration, do not perceive in this verdict, that violation of truth and justice, or that departure from the standard laid down to them, or that disregard of the evidence, which would lead to the belief that it was the result of undue partiality, or prejudice, or of any other improper bias.

There is one feature of this case, which appeared in the last trial, that presents it in a new aspect. The defendants were receiving bread from plaintiff at the time this was ordered, under a previous order for an indefinite quantity. That contract was still open, and the order not filled. Fending this, the defendants say to the plaintiff, “ go on and bake as fast as possible, until you are ordered to stop.” They gave no order to stop, but afterwards received bread and paid for it. I think on that proof there is great reason to consider the whole as one continuing contract, and that a delivery of part was in law a sufficient delivery of the whole to make the defendants liable. • Whatever weight there may be in this view of the case, it is now of no other importance than to reconcile me the more to the result of the action, which we feel bound to render final.

As to quantum of damages. See 1 MoM. 116. An.

Hunt, for the motion.

Motion dismissed; Gantt,.Evans and O’Neall, JJ., concurring. 
      
       See 2 N. & McC. 543; 1 N. & McC. 213, 240 ; Harp. 87 ; 11 Rich. 285. An.
      
     