Dodge County Lumber Co. v. Tucker , 1925 Ga. App. LEXIS 411 ( 1925 )

Jenkins, P. J.

(After stating the foregoing facts.) Defendant complains that the court misstated the contentions of the plaintiff in giving instructions as to the proper measure of damages. The court charged: “The plaintiff sues for the difference between the contract price and the market price at the time and place of delivery.” Movant says that confusion arose by reason of the fact that the court had just previously stated to the jury the following: “R. L. Tucker brings suit against [the defendant], alleging among other things that the defendant. . . breached its contract with him, whereby he has been damaged in the sum of $447.90.” If we understand this ground of the motion, the suggestion of movant is that, on account of the continuous decline of the market price, the difference would have been less, if reckoned as of the time the ties were first placed on the right of way, than it would have been if reckoned'as of the time when the defendant finally communicated its positive and final rejection of the ties. There was nothing in this charge from which the jury could have conceived that they were being instructed to measure the damages by the difference between the contract price and the market price at any time subsequent to-the date of defendant’s final positive rejection; and if any alleged confusion related to an earlier date than that (as it must necessarily have been, if there was any such confusion), such charge was all the more favorable to the movant, as there was a continuing decline in the market price till the very date of the final rejection.

Judgment affirmed.

Stephens and Bell, JJ., concur.