#### PHILIP N. FEREBEE v. W. S. BERRY.

(Filed 17 February, 1915.)

1. Appeal and Error — Evidence—Measure of Damages — Harmless Error.

Error committed on tbe trial wbicb bas worked no wrong or prejudice to tbe appellant will not constitute reversible error on appeal; and where it appears, by tbe verdict, in an action for damages for breach of contract, for tbe delivery of goods sold, tbat tbe jury bas accepted tbe figures testified to by tbe defendant upon tbe measure of damages, the plaintiff’s evidence thereof, though incompetent, cannot be a sufficient ground for awarding a new trial on tbe defendant’s appeal.

2. Vendor and Purchaser — Contract—Delivery—Measure of Damages — Evidence — Market—Quotations.

In an action against the seller of several hundred barrels of potatoes, for a breach of contract in failing to deliver them, it is competent, upon the measure of damages, for tbe plaintiff, as a witness, to give bis opinion of tbe price of tbe potatoes, based on information delivered from competent sources, such as market reports published in newspapers relied on by tbe financial world, etc., and bis testimony tbat tbe potatoes were worth at least $3 or more a barrel is competent as to tbe value definitely stated.

3. Appeal and Error — Questions and Answers — Responsive Answers — Objections and Exceptions.

Tbe Supreme Court will not consider on appeal the responsiveness of answers to questions asked a witness, wben not objected to by tbe appellant on tbe trial of the case.

Appeal by defendant from Garter, J., at September Term, 1914, of CURRITUOK.

Tbis action was brought by tbe plaintiff to recover damages for a breach of a contract to sell and deliver to him three hundred barrels in which to pack and ship bis crop of potatoes. He alleges tbat by reason of tbe breach be sustained a loss of $500 by a decline in the price of potatoes. Tbe jury assessed bis damages at $100, and from a judgment upon tbe verdict tbe defendant appealed.

Ward & Thompson for plaintiff.

Aydlett & Simpson for defendant.

*282"Walker, J.,

after stating tbe case: Tbe only exceptions relate to tbe admission of evidence as to tbe market value of tbe potatoes and tbe fall in tbe price, but upon an examination of tbe case we find tbat tbe jury bave really awarded less damages tban were warranted by tbe defendant’s own testimony in regard to tbis matter, and, therefore, if error was committed, wbicb we do not concede, it was harmless. He cannot reasonably complain tbat tbe jury has accepted and acted upon bis own figures and has even given less tban they would justify for tbe delay in delivering two hundred of tbe barrels and tbe refusal to deliver tbe other hundred. We bave recently said tbat if tbe error has worked no wrong or prejudice to tbe appellant, it would be vain to reverse tbe judgment. To quote tbe language in S. v. Smith, 164 N. C., at p. 480, which is very pertinent to tbis question: “The foundation of tbe application for a new trial is tbe allegation of injustice, and tbe motion is for relief. Unless, therefore, some wrong has been suffered, there is nothing to be relieved against. Tbe injury must be positive and tangible, not theoretical merely. For instance, tbe simple fact of defeat is, in one sense, injurious, for it wounds tbe feelings. But tbis alone is not sufficient ground for a new trial. It does not necessarily involve loss of any kind, and without loss or tbe probability of loss there can be no new trial. Tbe complaining party asks for redress, for tbe restoration of rights which have first been infringed and then taken away. There must be, then, a probability of repairing tbe injury; otherwise tbe interference of tbe Court would be but nugatory. There must be a reasonable prospect of placing tbe party who asks for a new trial in a better position tban tbe one wbicb be occupies by tbe verdict. If be obtain a new trial, be must incur additional expense, and if there is no corresponding- benefit, he is still tbe. sufferer. Besides, courts are instituted to enforce right and restrain and punish wrong. Their time is too valuable for them to interpose their remedial power idly and to no purpose. They will not interfere, therefore, where there is no prospect of ultimate benefit.” See, also, Webb v. Tel. Co., 167 N. C., 483. It was proper for tbe plaintiff, testifying in bis own behalf, to state bis opinion of tbe 'price, wbicb was based on information derived from competent sources. 16 Cyc., 1142, 1143; Smith v. R. R., 68 N. C., 107; Fairley v. Smith, 87 N. C., 367; Suttle v. Falls, 98 N. C., 393. And market reports, properly compiled and published in such newspapers as tbe commercial world relies on in tbe conduct of business and important affairs, are admissible as evidence of market values. Moseley v. Johnson, 144 N. C., 257. It was not required tbat plaintiff should be exact in stating tbe market price. He testified tbat potatoes were selling for more tban $3 per barrel. Tbis fixed tbe price, at least, at $3, and was properly submitted to tbe jury. Tbe answer of W. O. Eerebee was not responsive to tbe question put to him, *283and if the answer was incompetent, there was no exception tO| it, as there should have been. Peyton v. Shoe Co., 167 N. C., 280. But the answer, of itself, appears to be unobjectionable, as we must infer from the form and substance of the answer that the witness was speaking of his own knowledge. But, as we have said, if there was error in any of the rulings upon the evidence, no harm has befallen the defendant, as the verdict is correct in any view of the evidence, and it seems to fall below the amount which the undisputed facts justified.

No error.