CHARLESTON.

#### Grand Rapids Show Case Co. *v.*Earle Rogers Co.

(No. 5726)

Submitted January 18, 1927.

Decided January 25, 1927.

1. *Sales*— Buyer *May Charge Against Purchase Price Reasonable Cost of Bringing Article to Color of Sample.*

In case a purchaser desires to retain an article ordered which does not conform exactly to the color of the sample shown him by the seller, and it is practicable to remedy that difference, he may charge against the purchase price the reasonable cost of bringing the article to the color of the sample, (p. 65).

(Sales, 35 Cyc. p. 547.)

2. *Same*— In *Absence of Proof of Proper Measure of Damages for Breach of Sale Contract, Jury Should Not be Instructed to Allow Damages; In Absence of Proper Proof of Damages Because Fixtures Did Not Conform to Color of Sample, Purchaser Cannot Recover Therefor.*

Where no *proper*measure of damages is proven, the jury should not be instructed to allow damages, (p. 67).

(Sales, 35 Cyc. p. 651.)

2. *Trial*— Orp *Motion for Judgment for Price of Store Fixtures, Where Color Was Only Issue, View Should be Granted, if Practicable.*

Where the color of store fixtures is the only issue in a case, a view of the fixtures by the jury should be granted if it be practicable, (p. 68).

(Sales, 35 Cyc. p. 1314.)

(Note : Parenthetical references by Editors, C. J. — Cyc. Not part of syllabi.)

Error to Circuit Court, Ohio County.

Motion by the Grand Rapids Show Case Company for judgment against the Earle Rogers Company to recover the balance *65on tbe purchase price of store fixtures. Verdict was for plaintiff for less than it asked. Plaintiff’s motion to set the verdict aside was overruled, and it brings error.

*Reversed: new trial awarded.*

*W. L. Bradshaw*and *William F. Simpson,*for plaintiff in error.

*Nesbitt, Goodwin <& Nesbitt,*for defendant in error.

Hatcher, President:

A motion for judgment was made on Sept. 27, 1924, in the circuit court of Ohio county, by the Grand Rapids Show Case Co. against the Earle Rogers Co., a Corporation, to recover the balance on the purchase price of certain store fixtures, which amounted on that date to $814.48. The Rogers Co. claimed recoupment in the sum of $500.00. The jury returned a verdict in favor of plaintiff for $422.85. The plaintiff moved that the verdict be set aside, but the motion was overruled.

On Jan. 24, 1924, the defendant gave T. H. Wills, a salesman for the plaintiff, an order for certain fixtures to be finished in the color of a sample known as “No. 56 Wax”. When the fixtures came, they were somewhat lighter than the sample. Wills admitted the difference in color, and according to his testimony, told defendant “if your fixtures are not ‘No. 56 Wax’, we will replace, otherwise we will see how we can adjust them to bring them to the shade that you have in mind.” Wills also testified that the goods were delivered in “No. 56 Wax”; that the sample shown defendant had darkened from its original color because of exposure to light; that the fixtures would also darken from exposure within six months or a year; that the fixtures could have been immediately brought to the color of the sample by the application of a chemical wash; that the plaintiff sent a representative, named Drake, to apply the wash to defendants’ fixtures, but defendant refused to allow Drake to go over the fixtures; that at the time of the trial (which was had on Apr. 27, 1925), the fixtures had darkened to practically the shade of the *66sample; and that there was $845.70, (principal and interest), then due plaintiff from defendant. The original sample of “No. 56 Wax” and a fresh sample of the same finish, which was lighter in color than the original, was shown to the jury. The chemical wash was then applied to the fresh sample, which darkened to match the original.

Two witnesses testified for defendant, D. E. Rogers, its president, and J. 0. Schenerlein, its secretary. Their evidence tended to establish the following facts: that the fixtures came- in an entirely different finish from that ordered; that upon its arrival, Wills admitted the mistake and promised that plaintiff would furnish new fixtures; that Drake said the fixtures could not be made to match the sample, and the only remedy was to furnish new fixtures; that the lighter finish was not suitable for the business of defendant, which was handling automobile accessories, as it would mar and absorb grease more quickly than the darker finish; that the fixtures did not match in color the other woodwork of the store; and that there had been no lessening of sales because of the lighter finish.

Rogers estimated that the damage by reason of the lighter finish of the fixtures was $50.00 a year, and that the fixtures would probably last for ten years. ITe admitted on cross, examination that his estimate of damages was based on *what it was worth to him to he satisfied with the color.*Schenerlein considered the estimate of damages made by Rogers to be very reasonable. He also stated that the fixtures had already become marred by use to a certain extent, which would not have happened if they had been of the darker finish, but he did not state any amount of damages because of such marring.

The following instruction was offered by plaintiff but refused by the court:

> “The Court instructs the jury that if they believe from the evidence that the fixtures delivered by the plaintiff to the defendant were finished in No. 56 Oak finish as ordered, and if the jury further believes that the fixtures delivered by the plaintiff to the defendant were a little lighter in color than the sample shown to the defendant by *67tbe plaintiff’s salesman at the time the order was taken for said goods, and if the jury further believes that by exposure to air for a period of eight or ten months, or the application of a chemical process to said goods would bring the color of the fixtures delivered to the defendant to the same color as the sample shown to the defendant, and if the jury further believes that the plaintiff sent a representative from Grand Rapids, Michigan, to Wheeling, West Virginia, for the purpose of refinishing said fixtures with a chemical process so as bring said fixtures up to sample, and that the defendant refused to allow the plaintiff’s representative to touch the fixtures or to bring them up to sample, then the jury will find for the plaintiff, .and assess its damage at Eight Hundred Forty-five Dollars and Seventy Cents ($845.70).”

This instruction fairly presents the ease made by plaintiff, but is criticised by counsel for defendant on the theory that damages accrued to defendant immediately upon the arrival of the fixtures, and the instruction fails to authorize a deduction for such damage. Drake’s offer to apply the chemical wash was made, according to Wills, about a month after the fixtures were installed. Whatever damage defendant corporation suffered during that month, does not appear in the evidence. The personal dissatisfaction of Rogers furnishes no measure for defendant’s damages during that interval. Schenerlein does not say how much *marring*occurred to the fixtures in that period. The proper measure of damages in ease of a minor defect in goods ordered, is generally the cost of remedying the defect if practicable to do so. Sedgwick On Damages, Vol. 11, par. 620; *Crouch*v. *Gutmann,*134 N. Y. 45; *Keeler*v. *Herr,*157 Ill. 57; *Rr. Co.*v. *Burnham,*102 Fed. 699; *Mfg. Co.*v. *Phelps,*130 U. S. 520; *Marsh*v. *McPherson,*105 U. S. 709. Therefore the correct measure of damages to the defendant upon the arrival of the fixtures was the cost of making the color furnished match the color ordered. No evidence was offered as to this cost. In the absence of proper proof of damages, the above instruction should not have authorized a deduction for damages, and should have been given as tendered.

*68Tbe following instruction, No. 1, was given at tbe request of defendant:

> ‘ ‘ Tbe Court instructs tbe jury tbat tbe burden is upon tbe plaintiff to prove its case by a preponderance of tbe evidence and if you believe the plaintiff has not done that, then you should find for the defendant. ’ ’

Tbe defendant did not attempt to controvert tbe plaintiff’s account, except to tbe extent of $500.00. Wills swore tbat the defendant owed tbe plaintiff $845. 70. Tbe defendant did not deny owing $345.70 of tbat amount. In its special plea it admitted owing plaintiff $314.48. Consequently, tbe jury would not have been warranted in finding for tbe defendant under any theory of tbe defense, and tbe foregoing instruction was erroneous and misleading.

Defendant’s instructions No. 2 and 3 given by tbe court are correct in form, but are inapplicabJe to this case, because of lack of proof of proper measure of damages under defendant’s theory of tbe ease.

A motion to have tbe jury view tbe fixtures was denied tbe plaintiff. Such motion is ordinarily within tbe sound discretion of tbe court. But here tbe only matter of difference between tbe parties was tbe exact shade of tbe finish of tbe fixtures. Tbe fixtures would have furnished *the best evidence*as to whether, at tbe time of tbe trial, they substantially matched tbe sample. It was tbe duty of tbe court to permit tbe best evidence available to be submitted to the jury. *Compton*v. *County Court,*83 W. Va. 745. Defendant’s store was within tbe city of Wheeling. Tbe trial of this ease' was bad within tbe same city. Tbe record does not disclose tbat a view of the fixtures would have inconvenienced either tbe court or *the*jury. We are therefore of opinion tbat this motion should have been allowed.

For tbe reasons given tbe judgment of tbe lower court will be reversed, and a new trial awarded tbe plaintiff.

*Reversed; new trial awarded.*