Banks v. Warner

It is apparent from the facts appearing in the statement of the case that the court did not adopt as the measure of damages the rule stated in the reasons of appeal. Had it done so, the defendant's damages would have been $126.50 instead of the amount which was allowed. The amount which was allowed was the difference between this sum, which was what the defendant paid for the pier blocks after the plaintiff's breach of contract, and the sum for which the plaintiff agreed to furnish them.

But the plaintiff's contention before us has been that the true measure of damages in such a case is the difference between the agreed price and the market price at the time and place of delivery under the contract, and that this is not the rule which the court adopted.

It is well established that where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when, and at the place where, they ought to have been delivered; but where there is no available market for the goods, or where there is an available market and special circumstances are present showing proximate damages of a greater amount than the difference between the market price and the contract price, a different measure of damages has to be adopted. The measure of damages in any case is the loss naturally and directly resulting, in the ordinary course of events, to the vendee from the seller's breach of contract. Sales Act (Public Acts of 1907, § 67, p. 783). This has always been the rule in this State. Jordan, Marsh Co. v. Patterson, 67 Conn. 473,480, 35 A. 521; Marshall v. Clark, 78 Conn. 9,11, 60 A. 741. The Sales Act is in affirmance of our common law upon the subject.

To support the plaintiff's contention, therefore, it must appear from the record both that there was an available market and that the damages awarded the defendant by the court were not the difference between the contract price and the price in that market. Neither of these facts appear in the finding. It is not expressly found that there was or was not such a market, nor that the price paid by the defendant for the blocks was or was not the market price. It appears from the finding, as before stated, that the court found the defendant's damage to be the difference between the price which he paid for the blocks and the price which he was to have paid the plaintiff for such blocks under the contract. This is not inconsistent with the existence of an available market; for the price paid, while found to be reasonable under the circumstances, is not found to be other than the market price. The court was not required to make a finding to present these questions, because the plaintiff, in his request for a finding, did not, in the statement of the claims of law which he desired to raise, include the one now attempted to be raised by him. A finding is prepared to present only those questions which the plaintiff in his statement notifies the court that he desires to raise upon his appeal. General Statutes, § 793; Clark's Application,79 Conn. 136, 138, 64 A. 12; Dennison v. Waterville CutleryCo., 80 Conn. 596, 598, 69 A. 1022; Bridgeport v.Bridgeport Hydraulic Co., 81 Conn. 84, 89, 70 A. 650. We said in Dennison v. Waterville Cutlery Co., 80 Conn. 596,69 A. 1022, that an appellant cannot, as a matter of right, raise other questions on his appeal than those which he has thus notified the court that he desires to raise, although the rulings sought to be questioned appear in the record as made up. The reason is that this court cannot know that there are not other facts, pertinent to the question, which the court should and would have found had it been informed, as the statute requires, that the question was to be raised. One of the beneficial purposes of the statute, as pointed out in Clark's Application, 79 Conn. 136, 64 A. 12, is to enable the court to limit the record on appeal to those facts pertinent to the questions sought to be raised by the appeal.

It does not appear from the record that an erroneous measure of damages was adopted by the court, but did it so appear the question would not be open to the plaintiff on this appeal for the reason last stated.

The plaintiff's objection to the introduction of the receipted bill of Brazos is that it was hearsay testimony. It was offered not as a declaration of Brazos but as a part of the defendant's testimony as to the transaction, that at the time he paid for the stone he received a receipted bill. It would be natural for him to have demanded such a receipt. It was admissible for this purpose and to fix the date of the transaction. Bradley v. Gorham, 77 Conn. 211, 213, 58 A. 698. The case was tried to the court and there was no testimony offered to contradict the defendant's testimony as to the purchase of the rough blocks from Brazos. If the paper was improperly admitted the plaintiff could not have been harmed by its admission.

The plaintiff requested a change in paragraph eleven of the finding. The request was not accompanied by a transcript of testimony supporting the request and it was properly refused. There is no merit in his claim for this change in his reasons of appeal.

There is no error.

In this opinion the other judges concurred, except GEORGE W. WHEELER, J., who dissented.