{
  "id": 11273011,
  "name": "J. W. HUNTER v. SAMUEL GERSON",
  "name_abbreviation": "Hunter v. Gerson",
  "decision_date": "1919-11-19",
  "docket_number": "",
  "first_page": "485",
  "last_page": "486",
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    {
      "type": "official",
      "cite": "178 N.C. 485"
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "151 N. C., 401",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "162 N. C., 497",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "cite": "162 N. C., 395",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "167 N. C., 565",
      "category": "reporters:state",
      "reporter": "N.C.",
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  "last_updated": "2023-07-14T18:32:08.818827+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "J. W. HUNTER v. SAMUEL GERSON."
    ],
    "opinions": [
      {
        "text": "BkowN, J.\nTbis action is brought to recover damages for a breach of contract in tbe sale of tbe rails and fastenings of tbe Eddie Lake & Northern Eailway Company, as tbe same lay on the railroad bed. Fifteen issues were submitted to tbe jury, which it is not necessary to set out. Tbe jury found tbat tbe contract was duly entered into by tbe defendant, and tbat tbe defendant wrongfully failed and refused to comply with tbe contract, and wrongfully refused to permit tbe plaintiff to take up and remove tbe rail and fastenings. Tbe jury assessed tbe damages in favor of tbe plaintiff. According to tbe finding of tbe jury, tbe plaintiff bought tbe rails as they lay on tbe roadbed. His Honor instructed tbe jury as follows:\n\u201cAs to tbe other rails and fastenings, then, which tbe plaintiff contends tbe defendant contracted and agreed to sell him over and above tbe six hundred tons just referred to, the court charges, if you answer the first, third, fourth, fifth, and sixth issues \u2018Yes,\u2019 then as to the rails and fastening's embraced in the contract referred to in the first issue, other than the six hundred tons, the measure of damages, plaintiff\u2019s damages would be the difference between the price at which the defendant contracted to sell them, and their fair market value, f. o. b. the cars at Cdhway, S. C., at the time of the defendant\u2019s breach of the contract, if you find there was such breach.\u201d\nTo which the defendant excepted. The instruction is erroneous. All the testimony tended to prove that the contract was that the defendant was to take the rails on the roadbed and not f. o. b. at Conway. There was evidence tending to prove that it would cost about $9,400 to take up and remove the rails, consequently the rails are worth much less on the roadbed than they would be on the cars at Conway.\nThe rule for assessment of damages in a case like this is well settled, and it is the difference between the contract price of the rails and their fair market value at the time and place fixed by the contract for their delivery.\nLumber Co. v. Furniture Co., 167 N. C., 565; Lumber Co. v. Mfg. Co., 162 N. C., 395; Berbarry v. Tombacher, 162 N. C., 497. In the first case cited above, the Court says: \u201cThe court gave correct instructions as to the rule for admeasuring the damages, it being the difference between the contract price and the market price at the place and time appointed by the contract for the delivery. This is the standard of adjustment, as between the parties where there has been a breach, or failure to deliver, from a very ancient period, and is, we believe, universally adopted as being in reality the only one for our safe guidance, and a very just one, too.\u201d\nThe error of the court lay in fixing the market value of the rails f. o. b. cars Conway, S. 0., as the criterion, instead of their market value as they lay on the roadbed.\nThe learned counsel for plaintiff very earnestly insisted that the Court could deal with this case as it did with Rhyne v. Rhyne, 151 N. C., 401. In that case the Court held that the judge erred in his instructions to the jury in not directing them to allow a certain deduction for the value of the son\u2019s services, but we were of opinion that it appeared from, the verdict that the jury, without regard to the charge, had made the deduction, and that, therefore, the error was harmless.\nFrom an examination of the issues and evidence, we are unable to say that the error was harmless in this ease. We think the instruction was not only erroneous, but very probably misled the jury, to the defendant\u2019s detriment.\nNew trial.",
        "type": "majority",
        "author": "BkowN, J."
      }
    ],
    "attorneys": [
      "Gansler & Gansler and Morrison & Dockery for 'plaintiff.",
      "J. F. Newell, Clarkson, Taliaferro & Glarkson, and J. D. McGall for defendant."
    ],
    "corrections": "",
    "head_matter": "J. W. HUNTER v. SAMUEL GERSON.\n(Filed 19 November, 1919.)\nDamages \u2014 Contracts\u2014Instructions\u2014Appeal and Error \u2014 Prejudicial Error\u2014 Deductions \u2014 Verdict.\nWhere a contract for the sale of rails and fastenings was for the agreed price as they laid fastened to a railroad bed, it is reversible error, to defendant\u2019s prejudice, for the trial judge to charge the jury upon the measure of damages, that it would be the difference between the price at which defendant contracted to sell them and the fair market value f. o. b. at a certain station at the time of the defendant\u2019s breach, the correct rule being that it is such value at the time and place fixed by the contract for delivery, in this case, as they lay fastened in the roadbed. Held,, further, that Rhyne v. Rhyne, 151 N. 0., 401, as to deduction for services rendered, did not apply, it appearing from the verdict that the deduction had been made by them without regard to the charge.\nCivil ACTION, tried at February Term, 1919, of Meoelenbueg, upon certain issues submitted to tbe jury.\nFrom tbe judgment favoring tbe plaintiff, the defendant appeals.\nGansler & Gansler and Morrison & Dockery for 'plaintiff.\nJ. F. Newell, Clarkson, Taliaferro & Glarkson, and J. D. McGall for defendant."
  },
  "file_name": "0485-01",
  "first_page_order": 551,
  "last_page_order": 552
}