Ames Body Corporation v. Ralph

277 S.W. 1028, 211 Ky. 735, 1925 Ky. LEXIS 959

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: December 8, 1925
• Status: Published

Opinion

Opinion of the Court by

Commissioner Hobson

Affirming.

Tbe facts of this case are stated in the opinion on the former appeal. See Ames Body Corporation v. Ralph, 205 Ky. 565. On the return of the case to the circuit court the defendant filed an amended answer denying’ that it made the contract set out in the petition, and alleged that the allegations of the original answer on this subject were made by mistake. Tbe allegations of tbe amended answer were controverted by a reply. Tbe case came on for trial before a jury, wbo found for tbe plaintiff. Tbe defendant again appeals.

It is earnestly insisted for tbe plaintiff that tbe proof shows that tbe contract between tbe plaintiff and tbe defendant was in writing and that therefore tbe proof as to tbe oral contract was inadmissible. Tbe proof that tbe contract was in writing is, in substance, this: While Ralph was on tbe witness stand, be was shown a paper and said that tbe defendant’s agent at tbe time of tbe contract banded him a similar paper, but be could not state whether the paper shown him was just like it or not. Tbe paper shown tbe witness was unsigned, and be says it was simply a sawing memorandum to show bow the timber was to be cut. It is conceded in tbe evidence that tbe paper shown tbe witness was not tbe original paper and there was no showing that tbe original was lost. It was not produced and tbe plaintiff bad not been called upon toi produce it. There was no showing that either of tbe parties ever signed tbe paper or that it was anything more than a sawing memorandum. The copy of tbe paper was therefore properly disregarded by tbe court.

It is earnestly insisted that tbe court under tbe evidence improperly instructed tbe jury, but tbe instruotions were verbatim those directed to be given by this court on tbe former appeal. That opinion is tbe law of tbe case. The evidence on this trial was substantially tbe same as on that trial. There was no error of tbe circuit court in refusing to allow tbe defendant to prove Avbat it would have cost plaintiff to saw the lumber, for, as determined on tbe former appeal, tbe measure of recovery for tbe undelivered lumber was tbe profits, if any, ihe plaintiff would have realized on tbe remainder of the timber, such profits to be ascertained by deducting tbe difference, if any, between tbe contract price and tbe market price of tbe lumber at the shipping point, and such further deduction as was reasonable for tbe less time engaged by plaintiff and for bis relief from tbe. care, trouble, risk and responsibility attending a full execution of the contract. The market.price of tbe lumber at the station necessarily included tbe cost of sawing tbe lumber and delivering it at tbe station, and the plaintiff was only allowed to recover tbe difference between such market price and the contract price, subject to the deductions indicated. These deductions did not include the cost of sawing, for this was included in the market price of the lumber and the whole market price was deducted from the contract price

The circuit court and the parties are hound by the opinion on the former appeal. The rulings of the court vrere fully in accord with that opinion.

Judgment affirmed.