Plaintiff excepted and appealed from a ruling of the court restricting the amount of damages to the $500 advanced as a deposit. The plaintiff having, as established by the verdict, rightfully exercised his privilege of rejecting the potatoes because not in compliance with the specifications, the title to the goods remained in the defendants, plaintiffs are assuredly entitled to recover the $500 paid on deposit, and, as now advised, we see no reason why, in addition to this amount, they should not be allowed to recover the difference between the contract and market price at the time and place of delivery, as provided in the executory contract, f. o. b. New York, 1 August, 1917, this being the rule ordinarily applicable in such cases and illustrated and applied in numerous decisions of this Court on the subject. Flour Mills v. Distributing Co.,171 N.C. 708; Tillinghast v. Cotton Mills, 143 N.C. 268; Hosiery Co. v.Cotton, Mills, 140 N.C. 454; Coal Co. v. Ice Co., 134 N.C. 574.
For the error indicated and on plaintiff's appeal there will be a new trial on the issues as to damages, and it is so ordered.
Partial new trial.
Cited: York v. Jeffreys, 182 N.C. 458; Jeannette v. Hovey, 184 N.C. 143;Paint Lead Works v. Spruill, 186 N.C. 70; Early v. Flour Mills,187 N.C. 346; Davis v. Gulley, 188 N.C. 82; Welles Co. v. Satterfield,190 N.C. 94; McGraw v. R. R., 206 N.C. 880.