Everett v. Delp

Opinion by

Head, J.,

The statement of the questions involved, as printed in appellants’ paper book, clearly indicates the ground of complaint to be the alleged inadequacy of the charge delivered by the trial judge as to five particular points in contention between the parties. These are expanded into twenty-seven assignments of error. The first six of them challenge the correctness of certain rulings of the learned trial judge in admitting evidence, over the objection of the defendants, and thereafter-refusing to strike it from the record. This evidence, relating to the quantum of the injury alleged to have been sustained by the plaintiffs, could not have been excluded. Damages recoverable in an action at law as compensation for an injury cognizable by law must be measured within certain fixed principles. Although these are fundamental, they are elastic enough to be adapted to the constantly varying conditions surrounding the question to be litigated. In the last analysis the trial judge must instruct the jury what is the true measure after the evidence has laid bare the contentions of the parties. But the correct and accurate standard cannot always be perceived at the outstart of a trial.

It is not new doctrine, certainly since Seely v. Alden, 61 Pa. 302, to say it is not reversible error for the trial judge to' admit evidence tending to support either one of two recognized methods of ascertaining the true standard. The necessary qualification of what we have stated is that at the conclusion of the trial the jury be given the correct instruction. We quote from Mr. Justice Agjnew’s opinion in the pase stated; “It is often difficult for a court to determine the true measure until all the evidence is in......If there be different modes of measuring the damages, depending on the circumstances, the proper way is to hear the evidence, and to instruct the jury afterwards according to the nature of the case.” The assignments of error referred to must be overruled.

The case presented no necessary difficulty when the facts were ascertained. It is not disputed that, as the result of two contracts, the defendants had agreed to sell and deliver to the plaintiffs and the latter had agreed to accept and pay for nine cars of “Yellow Argentine corn” at a price named. Three cars were to be delivered in the month of July and a like number in the months of August and September. One car of the nine purchased, containing the corn contracted for, was actually delivered, received and paid for, and it thus disappears from the controversy. Two of the remaining eight cars contracted for were attempted to be delivered but the plaintiffs declined to receive them because their contents were thought to be not marketable. That difference of opinion or judgment between the parties clearly raised a question of fact that a jury alone could answer. As to the other cars, it appears to be conceded there was no delivery. It was contended the plaintiffs had waived the time of delivery agreed on. That defense was manifestly one of fact.

The remaining material point of defense between the parties was whether or not the plaintiffs, a breach of the contract, having been established, had a legal right to buy in the market anything but “Yellow Argentine corn.” If, by reason of the condition of the market, the injured party could not procure the precise commodity contracted for, there can scarcely be a doubt it could buy something else that would satisfy its necessities and reasonably approximate, both in quality and price, what had been contracted for. As to the adequacy of the charge on the material points in controversy, the charge itself is gnd must be its own defender. Upon a careful reading of it, in the light of the evidence, we are all of. the opinion the record as a whole exhibits no reversible error.

Judgment affirmed.