#### JOSEPH BERBARRY v. TOMBACHER & BANOV.

(Filed 12 March, 1913.)

1. Evidence Incompetent — 'Admissions by Witness — Subsequent Statement — Harmless Error.

Where a vendee seeks to recover damages from his vendor for failing to deliver goods of the quality he had bought, and introduces evidence tending to show that they were worth more to *498him than the price he had paid, testimony of a witness is incompetent which was offered for the purpose of showing that the defendant did not carry the line of goods which the plaintiff claimed he had bought, when it appears by his own admission that the witness did not have the requisite knowledge to make his evidence competent, and, further, in this case, the witness was .after-wards permitted to state the kind of goods the defendant carried in stock, and if any error was committed in ruling out the evidence objected to, it was cured.

2. Evidence — Vendor and Vendee — Exhibits to Jury — Comparisons.

Where damages are sought by the buyer of clothing oh the ground that the goods delivered were inferior in quality to those purchased, it is competent for the plaintiff to illustrate the difference in texture'and quality, by exhibiting other suits to the jury.

3. Contracts — Vendor and Vendee — Damages—Measure of Damages.

Where damages are sought by a buyer of goods on the ground that the seller furnished, goods of an inferior quality, a breach of the contract of sale would entitle, the plaintiff to nominal damages, at least; and the measure of recovery of substantial damages is the market value of the goods at the time and place stipulated for the delivery, less the contract price.

Appeal by defendant from Garter, J., at September Term, 1912, of New Hanover.

This action was brought to recover damages for the failure to deliver certain goods bought by plaintiff from defendant in New York, which was also the place of" delivery fixed by the contract of sale. The goods bought by plaintiff consisted of .men’s and children’s clothing: 165 pairs of pantaloons and 299 serge and cassimere suits for children, which had been damaged by water used in extinguishing a fire in defendant’s store, the price being $237.05. The amount of damages claimed by plaintiff is $850. Verdict and judgment for plaintiff, and defendant appealed.

J. D. Bellamy ■& Son for plaintiff.

H. M. McOlammy for defendants.

WalKER, J.

There are several questions of evidence in the case. The plaintiff offered testimony as to the real value of the goods he bought, with the view of showing that they were worth a great deal more than he gave for them, and .a witness, *499L. W. Davis, was introduced by tbe defendants to- prove tbat be bad seen tbe defendants’ stock of goods but a short time before tbe sale to plaintiff. Tbis testimony was offered to sbow tbat defendants bad not kept in tbeir stock any goods of tbe character and value of those described by the plaintiff’s witnesses. It is evident tbat tbe witness was not qualified to testify to tbe fact proposed to be established, because be bad not seen tbe stock from which tbe sale ’of tbe goods was made, but be was afterwards permitted to state tbe kind of goods defendants carried in tbeir stock, and to answer fully tbe excluded question. If, therefore, there was any error, it was cured. Gossler v. Wood, 120 N. C., 69; Daniel v. Dixon, 161 N. C., 377. Besides, when tbe witness did answer tbe question, or attempted to do so, it appeared by bis own admission tbat be did not have tbe requisite knowledge of tbe fact involved.

There was some controversy between the parties as to whether plaintiff bought cassimere, serge, or cotton suits; and plaintiff, in order to identify and fix tbe quality of tbe goods be did buy, was permitted to exhibit to tbe court and tbe jury suits of tbe three kinds, and to show tbe difference in quality. It was not for tbe purpose of showing tbe value of tbe goods be bought, but merely to illustrate tbe difference in texture and quality of different sorts, as a means of informing tbe jury of tbe kind and quality be purchased. We do not'see why tbis was not competent. S. v. Vann, post. Tbe other exception to evidence is without merit, and requires no comment.

Tbe last exception is to tbe instruction of tbe court, tbat if there bad been a breach of tbe contract by defendant, tbe plaintiff was entitled to recover nominal damages, if no substantial damages bad been shown; and tbis is true. Chaffin v. Manufacturing Co., 135 N. C., 95; Manufacturing Co. v. Machine Works, 144 N. C., at p. 690. Tbe court stated to tbe jury tbe correct rule as to actual damages, it being tbe difference between the agreed price and tbe market value at tbe time and place of delivery as fixed by tbe contract. Coal Co. v. Ice Co., 134 N. C., 574; Douglass v. McCallister, 3 Cranch., 298; Roberts v. Benjamin, 124 U. S., 64; Shepherd v. Hampton, 3 Wheaton (U. S.), 209. Tbe standard, therefore, by *500which to estimate damages for nondelivery is the market value at the time and place stipulated for the delivery, less the contract price. Grand Tower Co. v. Phillips, 23 Wall., 471; Homesley v. Elias, 75 N. C., 564; Oldham v. Kerchner, 79 N. C., 106. This disposes of all the exceptions.

No error.