Joseloff Co. v. Spirt , 97 Conn. 447 ( 1922 )

Unless the finding be corrected in such way as to affect the judgment rendered, the appeal must fail. Plaintiff's claim to recover loss of profits, loss to its business, and loss in the purchase of Porto Rican sugar in place of the sugar which defendant did not deliver, set forth elements of special damage, each one of which must have been alleged in order to support a recovery therefor. Tomlinson v. Derby,43 Conn. 562; Coast Central Mill Co. v. Russell LumberCo., 88 Conn. 109, 112, 89 A. 898. The complaint in this case sets forth a breach of contract for failure to deliver the sugar contracted for, and claims general damages, but does not allege any special damage suffered in consequence of the breach.

Plaintiff's exception to the court's finding that the plaintiff did not avail itself of its privilege to increase the quantity of sugar purchased from 500 to 800 bags, is not well taken. Equally without merit is the exception to the court's finding that the breach of this contract occurred on March 27th, 1920.

The measure of damages in this case, under General Statutes, § 4733, is "the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered." This section was declaratory of our common law. The market price was to be ascertained in the nearest wholesale market, New York City, on the date of breach, March 27th, 1920, if there was a market at this time. The trial court finds the price of said sugar on March 27th, 1920, and on April 1st, 1920, was 14 cents per pound in New York City. This was the quoted price, and the sugar could be bought in limited quantity, not to exceed 100 bags, at the quoted price. But the salesman of the American Sugar Company candidly testified that 500 bags could not then be purchased at one time. So that we do not think the court was authorized in finding that plaintiff could have purchased 500 bags of American Sugar Refining Company sugar such as this contract called for, at 14 cents on either of these dates. Nor do we think that in view of the testimony of the representative of the Sugar Company, that the court was justified in finding that there was an available wholesale market for the purchase of 500 bags of such sugar on March 27th and April 1st, 1920. But we think the court was entirely right in its conclusion that it had not been shown that the wholesale market price was more than the contract price on or about March 27th, 1920. The finding that plaintiff made no effort after April 1st, 1920, to purchase sugar in New York until the 13th of the same month, is fully supported by the evidence.

The only evidence before the court of the price of sugar between March 27th and April 9th, 1920, was the quotation of the price of the American Sugar Refining Company of 14 cents per pound, and the sale by that Company on April 1st, 1920, of 350 bags of sugar at 14 cents per pound to plaintiff. This evidence, in view of the salesman's testimony that 500 bags could not then have been bought, was insufficient to warrant a finding that the 500 bags could have then been purchased for immediate delivery at 14 cents per pound. But it was practically all the evidence before the court of the price of this sugar between these dates. The plaintiff failed to prove any damage on the date of breach, or on any day within a reasonable time therefrom, and the judgment for nominal damages was the only judgment which, upon the facts, could have been rendered.

Three weeks after the trial, plaintiff presented an amendment of its complaint, setting up certain items of special damage as within the "special circumstances showing proximate damages of a greater amount," allowed under General Statutes, § 4733. The court's ruling disallowing the amendment is assigned as error. Upon the facts of record, the matter was within the discretion of the trial court. McMahon v. Plumb, 90 Conn. 281, 96 A. 958; Verdi v. Donahue, 91 Conn. 448,453, 99 A. 1041.

Two rulings on evidence are pressed in the appeal. Defendant introduced the head salesman in Connecticut of the American Sugar Refining Company, who was familiar with the market price of sugar in March and April, 1920, and inquired of him as to the market price of sugar of the American Sugar Refining Company on or about March 27th, 1920. The witness proceeded to use a book of this company containing quotations of prices of sugar during these months. The court permitted the witness to refresh his recollection by reference to this book. The question was objected to because it called for quotations instead of the market value for immediate delivery. The court ruled that the witness was a qualified expert and familiar with the market price of sugar, and that the objection went to the weight rather than the admissibility of the evidence and that this could be tested upon cross-examination. The ruling was correct.

Defendant testified in his own behalf. On cross-examination, to test the witness' credibility, he was inquired of if he had been convicted of violating the Lever Act. On objection the question was excluded, and this ruling was likewise correct. Offenses punishable under an Act for the Conservation and Distribution of Food, approved August 10th, 1917, and popularly called the "Lever Act" (40 U.S. Stat. at Large, p. 267), do not fall within the class of crimes a conviction of which will affect the credibility of a witness.State v. Randolph, 24 Conn. 363; Drazen v. NewHaven Taxicab Co., 95 Conn. 500, 111 A. 861. Further, if the fact of conviction had been admissible to affect the credibility of the witness, it must have been proved by the record of conviction and not upon cross-examination. Shailer v. Bullock, 78 Conn. 65, 61 A. 65; Dore v. Babcock, 74 Conn. 425, 430,50 A. 1016; Drazen v. New Haven Taxicab Co., 95 Conn. 500,503, 111 A. 861.

Other assignments of error are without merit.

There is no error.

In this opinion the other judges concurred, except GAGER, J., who concurred in the result, but died before the opinion was written.