The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-09-26

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would be erroneous. for the Jury
were the judges OK the question a.
to what constituted a pineapple.
But in the Courts charge il based
this instruction that pineapple in
cluded the crown with the fruit part
upon the admission of the defendant
that in order to make up the con-
tract weight Of three pounds and
over TO each pineapple, he included
the top with the edible part. and the
Court said it was not an open cues.
ton OF fact to pass upon, because
Mr.. Kidwell had admitted that the
crown was part Of what he had
sold and what Mr.. Camarinos had
bought. And in regard to the cutting
of the tops the Court left il to the
Jury to find on the evidence whether
the defendant cut the tops when they
we're half grown, with the idea OF
stopping the growth Of the top and
forcing the growth to enlarge and
improve the fruit, and that such cuts
would heal up defendant showing
fruit which had been treated in this
way which had healed up), and il
they found that it did not iniure the
fruit so that it was in good condi-
tion,' then defendant had done no
damage TO plaintiff plaintiff re-
eeived 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 If on
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 a part of the pineapple
because defendant had so considered
it, and that if defendant mutilated it
so that it deteriorated or spoiled the
fruit they might find for plain
tiff. And we cannot see that the
jury were misdireeted by the instruc-
ton given, when the whole charge is
considered.
1t is commended on behalf Of the
defendant that the evidence does not
sustain the verdict in that the ship
ments for six months did not show a
total loss-espeeially, because il 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 left 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 total loss, whereas the law is
and the jury were so instructed, that
the measure of damages was the diff
terence between the contract price
and the market price at Honolulu or
San Francisco. In the case Of the
pineapples that were actually de-
iiyered, 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
that is, from June 9th, 1891,
to 31st December, 1892, the rule was
correctly laid doWn-that plaintiff 3
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. In 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. & Eng.
Encyclo. of Law, p. 30; 2 Benz. Sales,
Sec. 1895. Only limited number Of
the choice varieties of piueapples
could be sold here; it was eontem-
plated that the majority Of them were
to be shipped, and they were picked
by Dir. 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
STE that the verdict is not sustained
by the evidence. The estimate Of
bis anticipated profits, as made by
the plaintiff was far il excess Of the
verdict The jury undoubtedly con-
iidered the perishsble nature Of the
iruit and its liability to loss and the
Of its market according
- it was stocked or not with other
lruit There was no contract Of re-
jale by Camarinos shown. He says
ne consigned the fruit TO his brother
4 San Francisco, who sent him Cali
iorDia fruit in exchange, and that
,nee a year they settled accounts
The account sales shown by defend
INT Of pinespples shipped by him
Turing the period in question show