Muscarella v. New York Central R. R. Co.

jury upon, and both replied that there were no further instructions desired.

It is also contended by the defendant that this verdict is excessive. The testimony which was the basis for the verdict was to the effect that the deceased was from twenty-nine to thirty-three years of age; that his disposition to work and labor was good; that he worked every day; that he had no bad habits except that he smoked cigarettes, that he earned from $2.10 to $2.40 per day; and the Actuary Tables show that he had a probability of life of something over thirty years.

Under this testimony we do not feel that we can say that the verdict was excessive. As we understand the law the fact that the plaintiff was so fortunate or unfortunate as to remarry again so quickly after the death of her husband does not inure either to the benefit or detriment of the defendant, but is wholly a personal matter with the plaintiff and extraneous to the case.

Now, therefore, November , 1918, the rules granted March 15th, 1918, to show cause why a new trial should not be granted and for judgment Non Obstante Veredicto are discharged and the Prothonotary is directed to enter judgment on the verdict upon payment of the jury fee.

COMMONWEALTH V. WASHBURN.

Common Schools-Sections 1414 and 1423 of the School Code.

Where defendant refused to have his children vaccinated, but sent them to school each day and they were refused admission to the Common Schools because of their not having been vaccinated, the defendant was held guilty of failure to educate and send his children to school where the common English branches are taught, contrary to Act of 1911, P. L. 307.

Appeal from judgment of an Alderman. Quarter Sessions, Erie County, No. 74 February Sessions, 1919.

A. O. Chapin for Commonwealth.
S. Y.Rossiter for Defendant.

ROSSITER, P. J., June 2, 1919,-This is an appeal by the defendant from the judgment of Alderman Bassett in a proceeding instituted under the Act of Assembly of May 18, 1911, P. L. 209, commonly called the School Code, involving Sec. 1414 (page 303) and Sec. 1423 (page 383) of that Act. The case was heard de novo, and by stipulation between the attorney for the School Board, representing the Commonwealth, and the attorney for defendant, it was agreed that the testimony taken before the magistrate should be considered as though taken in Court. There are no disputed facts, and in our opinion this case is controlled by Commonwealth vs. Aiken, 64 Superior, page 96.

And now, to-wit, June 2nd, 1919, the above case having been heard, upon an appeal from an Alderman, testimony taken and arguments of counsel heard, after deliberation and due consideration, we find the defendant guilty of the offense of failure to educate and send his children to school where the common English branches are taught, contrary to the provisions of the Act of Assembly known as the School Code, approved May 18, 1911, P. L. 309. The defendant is therefore sentenced to pay a fine of two ($2) dollars, with costs, and in default of the payment thereof to undergo imprisonment in the county jail for a period of five days, and stand committed until this sentence is complied with.

SHENANGO COAL CO. V. CULBERTSON, ET AI.

Contracts-Measures of damages for breach-Market value of

goods.

Plaintiff contracted to furnish defendant coal from its mine at a price specified in the contract. Defendant failed to keep up the payments and the plaintiff stopped shipments and brought suit to recover. Defendant claimed damages by reason of the stoppage of shipments and set off the difference between the contract price and the price defendant paid to make up the shipments. Held, the measure of damages is the difference between the contract price and the market price at the place of delivery.

Rule for New Trial, No. 292, September Term, 1917, C. P. Erie County.

J. M. Sherwin for Plaintiff.

Marsh & Eaton for Defendant.

WHITTELSEY, J., June 7, 1919-It appears from the evidence in this case that the plaintiff is the owner and operator of coal mines in Butler County, Pennsylvania, and that the defendants are dealers in coal in the City of Erie. That Kay, the manager of the plaintiff, entered into a verbal agreement with the defendant, which was later confirmed by letters which passed between the parties; in and by which the plaintiff agreed to sell the defendant certain grades of coal, produced in their mines in Butler County, until further notice. The terms of payment do not appear in the writings, the defendant claiming that he was to have "accommodation," meaning as he claims, that the plaintiff was to accept his notes for three or six months as theretofore had been the course of dealing between the parties. This was denied by Kay, who claimed that the coal was to be paid for in cash in thirty days. Coal was shipped by the plaintiff to the defendant from time to time, until along the last of December, 1915, or the first of January, 1916, when the plaintiff alleges that the defendant failed to pay for the coal shipped, and became indebted to the plaintiff in so large an amount that the plaintiff refused to ship any more coal until the amount then owing to the plaintiff was paid, and so notified the defendant. The defendant does not dispute the amount of the plaintiff's claim for the coal shipped him, but alleges that he has

Shenango Coal Co. v. Culbertson, et al.

suffered damages by reason of the failure of the plaintiff to continue to furnish him coal according to the contract. That the price of coal increased, and he was obliged to purchase coal in the open market to supply his customers, and pay an increased price therefor. That the amount of damages sustained by him by reason of the breach of the contract between them on the part of the plaintiff, exceeded the amount of plaintiff's claim, and that the plaintiff was not entitled to recover anything against him, but on the contrary, he was entitled to recover a balance against the plaintiff.

The case was submitted to the jury, and they were instructed among other things, that if they found that there had been a breach of the contract and the plaintiff had not performed his part, and the defendant had suffered damages by reason thereof, the measure of damages would be the difference between the contract price and the market price of the coal at the time and place of delivery; that the place of delivery was at the mines in Butler County. At the argument of that motion the learned counsel for the defendant claimed that this was error, and that the defendant had a right to buy coal in the open market to make good the default of the plaintiff, and that he did so, and had a right to set off the damages sustained by him, being the difference between the contract price and the price thus paid by him. We cannot agree with this contention. That the general rule is as above stated, viz: that the measure of damages is the difference between the contract price and the market price at the time and place of delivery, seems to be well settled.

Fessler vs. Love et al., 48 Pa., page 407.

Kinports vs. Breen, 193 Pa., page 309.

David vs. Witmer & Sons, 46 Superior, 307.

Honesdale Ice Co. vs. Lake Ladore Imp. Co., 232 Pa., page 293.
Raby vs. Ward Mechan Co., 261 Pa., page 468.

To the rule of market price there are some exceptions, depending on particulars and circumstances. The goods may have no market value at the place of delivery for lack of market, in which case the market value may be determined by ascertaining the market price at the nearest available market, and adding the expense of fetching the goods to the place of delivery; or if there is no available market the market value may be determined by ascertaining the cost of manufacturing the goods, if that is the natural and reasonable way to procure them, or if the exact description of the goods cannot be obtained, the damages may be fixed by the price of the best substitute attainable, if it is reasonable for the buyer to take that course. If no substitute is obtainable, the buyer may be entitled to special damages.

Hale on Damages, pages 241-243

Grand Tower Co. vs. Phillips, 23 Wallace, page 271.

None of these contingencies arose in the case at bar. There is a market for the grade of coal called for in the contract between the parties. The uncontradicted evidence is that besides the mines of the plaintiff in Butler County, there are two other mines within three miles of plaintiff's mines; a number of mines within eight, nine or ten miles; quite a number of mines back on the Hilliard branch of the Bessemer, practically in the same field. Some are large companies and there are quite a number of small companies. The Butler County coal is of poor quality. There was, therefore, no necessity for the defendant to go anywhere but to the Butler coal mines to get the exact quality of coal called for in the contract. That was the place of delivery and there the market price of this identical grade of coal could be obtained.

ORDER

And now, June 7, 1919, the rule to show cause why a new trial should not be granted is discharged,and the prothonotary is directed to enter judgment on the verdict on payment of the jury fee.

ESTATE OF ELLEN HARDINGER, DECEASED.

Lunatics-Estate of lunatic liable for maintenance.

The amount paid by the Commonwealth for the support and maintenance of a lunatic is not a mere gratuity but is based on an implied contract on the part of the lunatic to reimburse those who had supplied his necessities. The same rule applies to the claim of a poor district or county.

Exceptions to Auditor's report, No. 20 November Term, 1918. O. C. Erie County.

A Grant Walker, Esq., for Southern Surety Co.
C. T. Bryan, Esq., for Administrator.

M. R. Nason, Esq., for Directors of the Poor.

A. E. Sisson, Esq., for Commonwealth.

F. B. Hosbach, Esq., for Heirs of Ellen Hardinger, deceased.

WHITTELSEY, J., June 3, 1919-It seems to be well settled that the amount paid by the Commonwealth for the support and maintenance of a lunatic is not a mere gratuity, but is based on an implied contract on the part of the lunatic to reimburse those who