The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-09-20

way which had healed up). and /
they found that 1t did not ipjure til,
fruit so that it was in good condi
tlon,' then defendant had done ~
damage to plaintiff plaintiff re
ceived his fruit in good condition
and had the full advantage of the
market price of the whole thing, the
top and the pine itself" And the
jury were also instructed that il OF
the preponderance of the evidence
they found that the fruit delivered by
| defendant was deteriorated or spoiled
through the acts Of the defendant
they must find for the plaintiff. In
short, the jury were told that the
crown was part of the pineapple
because defendant had so considered
it, and that IL defendant mutilated ii
so that it deteriorated or spoiled the
| fruit they might find for plain
| tiff. And we cannot see that the
| jury were misdirected by the instruc-
ton given, when the whole charge is
| considered.
1t Is contended on behalf OF the
defendant that the evidence does not
sustain the verdict In that the ship
ments for six Z. onths did not show a
total loss-especially, because If they
had resulted in total loss the ship
ments would not have been continued
for this period. All we say is that
these facts were all LETT to the jury,
and the explanation of Camarinos
why he did not object sooner to the
condition of the fruit was left to the
jury.
1t is claimed also that the jury
found for the San Francisco price of
the pineapples upon which there had
been a total loss, whereas the law Is
and the jury were so instructed, that
the measure of damages was the diff
ference between the contract price
and the market price at Honolulu or
San Francisco. In the case of the
pineapples that were actually de
livered, paid for and shipped by
plaintiff to San Francisco, the dam
ages were the price for which they
would sell in San Francisco, that is
the contract price which had been
paid and the profit thereon. In that
part of the case relating to the dam
age the plaintiff suffered by loss of
profits to be made upon the pineapples
during the remainder of the thirty
months, that is, from June 9th, 1891,
to 31st December, 1892, the rule was
correctly laid down-that plaintiff s
loss, If the contract was rescinded by
defendants wrongful acts, was the
difference between the contract price
(he not having paid it) and the sell
ing price in San Francisco. I'm an
action by buyer against seller, if the
seller fails to deliver the goods, the
buyer may recover the difference be-
tween the contract price and the
market value of them at the time and
place of delivery" 5 Am. Il Eng.
Encyclo. of Law, p. 80; 2 Benz. Sales,
Sec. 1885. Only limited number of
the choice varieties Of pineapples
could be sold here; it was contem
plated that the majority of them were
to be shipped, and they were picked
by Mr.. Kidwell at the proper stage
of maturity with this in view. The
jury had data before it of the number
of pineapples likely to be ready for
delivery during that period and the
average price for which they would
sell in San Francisco. This evidence
varied widely on the opposing sides,
but it was before the jury with a
proper instruction, and we cannot
See that the verdict is not sustained
by the evidence. The estimate of
his anticipated profits, as made by
the plaintiff was far in excess of the
verdict. The jury undoubtedly con-
sidered the perishable nature of the
fruit and its liability to loss and the
of its market according
as it was stocked or not with other
fruit. There was no contract of re-
sale by Camarinos shown. He says
he consigned the fruit to his brother
in San Francisco, who sent him Cali
fornia fruit in exchange, and that
once year they settled accounts.
The account sales shown by defend
ant Of piueapples shipped by him
during the period in question show
ing much less profit is not conclusive
for the reason that the ordinary or
pineapples were included
in the consignments with the best
qualities, the subject of this contract
and the prices realized from each are
not separated. The evidence in this
case was voluminous; the trial occu-
pied three days and it was exhaust
lively tried, and we find no reversible |
errors disclosed.
Exceptions overruled.
p. Neumann and G. Creighton for |
plaintiff; f. M. Hatch, Thurston IL |
Frear for defendant.