Sturm & Drake v. Roberts Elevator Co.

198 P. 545, 60 Mont. 239, 1921 Mont. LEXIS 92

Opinion

MR. JUSTICE REYNOLDS

delivered the opinion of the court.

Plaintiff brought action against defendant on two causes of action to recover damages for failure to deliver hay pursuant to the terms of two contracts for the sale thereof. Judgment was rendered in favor of plaintiff. Motion for new trial was made and overruled. Defendant appeals from judgment and from order overruling motion.

Several assignments of error are made by defendant, but under the provisions of rule 10, subdivision 3, of this court (53 Mont, xxxv, 167 Pac. x) only one can be considered; i. e., insufficiency of the evidence to justify the verdict.

It is contended that the evidence is insufficient to support the verdict for the following reasons: (1) There is no evidence of any market price of hay on January 1, 1917, being the date specified in the contract for delivery thereof; (2) there is no evidence to support the particular amount which the jury returned in their verdict; (3) there is no evidence of any special damage to the plaintiff.

We are unable to see the force of the first reason above mentioned, for no less than four witnesses testified as to the market price of hay on January 1, 1917, at place specified for delivery.

[1] Under the second reason it is urged that, inasmuch as a mathematical calculation shows that the jury arrived at its verdict on a basis of a market value of $19 per ton for the hay, and there was no evidence given as to that exact valuation, there is no basis for a verdict for the particular amount given. The evidence, however, discloses that testimony was given as to the market value ranging from $15 to $26 per ton and such is also alleged in appellant’s brief. So long as there is substantial evidence showing a valuation in excess of that allowed by the jury, then we must hold that the evidence is sufficient to support the verdict in that respect.

[2] It is contended that there is no evidence of actual damage, for the reason that it does not appear that plaintiff suffered actual damage, had any particular use for the hay, had contracted to sell this hay to other parties, or had been obliged to go into the open market and purchase hay to fill its own contracts or supply its own needs. Under the statutes of this state the evidence is sufficient to entitle plaintiff to substantial damages if it discloses that the market price at time and place of delivery was in excess of the contract price. (Rev. Codes, secs. 6056, 6082; Pritchett v. Jenkins, 52 Mont. 81, 155 Pac. 974.) The same construction has been given by the supreme court of California upon similar statutes. (Bullard v. Stone, 67 Cal. 477, 8 Pac. 17.)

It is apparent from tbe foregoing that tbe evidence was sufficient to support tbe verdict.

Tbe judgment and order overruling motion for new trial are affirmed.

'Affirmed.

Mr. Chief Justice Brantly and Associate Justices Cooper, Holloway and Galen concur.