Americus Grocery Co. v. Brackett & Co. , 119 Ga. 489 ( 1904 )

Lamar, J.

Bargain and sale of a chattel of a particular description imports a warranty that the article sold is of that description. Miller v. Moore, 83 Ga. 684; Civil Code, § 3558. It was for the jury to decide whether “Texas red rust-proof seed oats” described a specific variety, regardless of where they were raised, as “Irish” potatoes include those raised outside of Ireland; or whether the trade meaning included those grown in the State of Texas, deriving their special value from the character of the soil and climate. One witness testified that oats raised in Indian Territory and Oklahoma came within the descriptive words. Others, that it meant only those raised in Texas. A conflict in the plaintiff’s-testimony did not of itself authorize the grant of a nonsuit. It proved its case as laid, and by going to trial on the issue, raised by petition and answer the defendants waived any advantage which they could have taken by reason of their special demurrer.

Assuming that there was in fact a breach, a recovery would not be defeated because the price advanced and several weeks later the plaintiff sold these oats raised in Oklahoma at a profit. The law does not allow the rights of the parties to depend upon the subsequent fluctuations of the market. Where there has been a breach, the measure of damages is ordinarily the difference between the value of the goods ordered and those delivered at the time and place of the delivery. The amount which the plaintiff would be entitled to recover is not affected by the subsequent rise or decline in prices of those ordered, or of those delivered; nor is it changed by the fact that the plaintiff subsequently resold at an increased, or decreased price. Compare Berry v. Shannon, 98 Ga. 461. Often in fact, and always in theory, the party who is damaged by such breach of a warranty of personal property can resell on the same day, or he can retain the goods at that day’s market price, and the difference thus calculated represents his actual loss, as well as the measure of legal damage. If the goods thus retained decline in value, the amount he is entitled to recover is nob increased; if the goods advance, the defendant’s liability is not lessened. The rights and liabilities of each are fixed on that day, and subsequent changes in the value of the goods ordered or delivered are wholly immaterial. Civil Code, §§ 3557, 2319, 3551.

Judgment reversed.

All the Justices concur, except Simmons, G. J., absent.