1. Under the allegations of the answer, the damages sought to be set off against the purchase-price of furniture, in addition to the difference between the contract price and market value of articles not delivered, were too remote to form the basis of a recovery, and the court did not err in striking the portions of the answer setting up said damages.
2. There was no evidence from which a jury could determine the market value of 300 "No. 90 coil 3/3 springs," the articles purchased by the defendant from the plaintiff and not delivered; and when the plaintiff voluntarily wrote off from the verdict $600 as representing the difference between the contract price of the springs and their market value, the overruling of the motion for new trial was not harmful to the defendant.
DECIDED SEPTEMBER 20, 1944.
Haverty Furniture Company sued Aircraft Apartments Inc. to recover the purchase-price of certain articles of furniture purchased under two written contracts. Included in the goods contracted for were 300 beds, 300 mattresses, and 300 "No. 90 coil 3/3 springs C 5." In its answer, the defendant alleged that the plaintiff breached its contract by failing to deliver the springs, the contract price of which was $7 per spring, and prayed for damages of $5 per spring, the difference between the contract price and the market price of the springs. The answer further alleged that, at the time the springs were to be delivered, the defendant was unable to go into the market and buy any similar springs, without also buying beds and mattresses, and that the plaintiff refused to take back the beds and mattresses so as to permit the defendant to go into the open market and buy beds, springs, and mattresses. The
defendant also sought additional damages in the sum of $10,000 by reason of the following allegations: That it had built 50 houses near the Bell bomber plant for the purpose of housing workers; that each house was composed of two rooms with each room accommodating three beds; that the prevailing lodging price was $1 per person per bed; that by reason of the plaintiff's failure to deliver the springs, the defendant suffered a loss of $10,000 in net profits; that such failure resulted in the defendant having to lease the houses to the United States Government at $1 per year for the property. The plaintiff demurred to the allegations in the answer with reference to all damages except those covered by the difference between the contract price and the market price of the springs. Whereupon, the defendant filed an amendment to the answer, alleging substantially: that when the contract of purchase was made, it was in the contemplation of the parties that the beds could not be used without the coil springs; that a failure to deliver the springs would result in the failure of the whole project; and that the expected returns from the project would be lost to the defendant. The plaintiff moved to strike that part of the amended answer with reference to loss of profits and damages for failure of the project, on the ground that the damages were too remote to be the subject-matter of a recovery. The court sustained the motion and the defendant excepted pendente lite. The jury found for the plaintiff in the amount sued for without deducting any damages to cover the difference between the contract price and the market price of the springs. The defendant's motion for a new trial was overruled after the plaintiff wrote off from the verdict $600, representing the difference between the contract price and the market price. The defendant excepted to the overruling of the motion for a new trial, and to the striking of the part of the answer above referred to.
1. Whether, under other circumstances, the answer set up damages not too remote to be recovered, it did not set up such damages under the facts here presented. It was the duty of the defendant to minimize the damages resulting from the plaintiff's breach of the contract, and the allegations of the answer show
that it made no effort to do so. It was the duty of the defendant to purchase other springs suitable for the beds purchased and charge the plaintiff with the difference in price, if any, and in the event it could not do so, to purchase beds complete with springs and mattresses and charge the plaintiff with the difference between the purchase-price of the complete bed outfits and the value of the beds and mattresses purchased from the plaintiff without the springs. The answer did not allege that other suitable and usable springs could not be obtained without the purchase of beds and mattresses, but merely alleged that similar springs could not be obtained without the purchase of complete beds, including mattresses and springs. The answer did not allege that the defendant sought to minimize the damage, or to establish the damage following naturally and according to the usual course of things and such as, in the eyes of the law, were contemplated by the parties. Code, § 20-1407. It can not be said, under the allegations, that the plaintiff should have contemplated that the defendant depended for the success of its project upon the obtaining of 300 bed springs from the plaintiff, and that the plaintiff's failure to deliver them would render the project valueless to the defendant. Under the allegations the computation of loss of profits claimed would depend on the grossest speculation as to number of rentals, price of rentals, and time for which they might have been made. The court did not err in striking the portion of the answer in question.
2. The judgment of the court overruling the motion for a new trial, after the amount of $600, representing the difference between the cost price and the market value of the springs, was written off of the verdict, was not harmful to the defendant. There was no evidence in the case from which a jury could determine the market value of the springs. One defense witness stated his opinion of the market value of a ninety-coil spring. Those ordered were fifty-coil springs. Another defense witness testified that there was no market for such a spring without beds and mattresses, yet gave his opinion that the market value was from $9.95 to $14.95. There was no basis for such an opinion. Another defense witness gave his opinion that the market value of such springs was $11.95, but he arrived at his conclusion from a comparison of a description he was given of the springs ordered, with certain springs he had in his furniture stock for sale. There was no way
a jury could ascertain from his testimony whether his opinion that $11.95 was the market value of the springs ordered, was based on his comparison with springs he had in stock which compared with the springs ordered. This witness stated that he could not tell from the contract what the market value of the springs was. The plaintiff's witness did not testify as to the market value of the springs. He simply stated what the retail cash and credit price was. This alone is not enough to establish market value. Collins Glennville R. Co. v. Beasley, 36 Ga. App. 241,243 (136 S.E. 167), and cit.
The court did not err in overruling the motion for a new trial.
Judgment affirmed. Sutton, P. J., and Parker, J., concur.