CLARK, J., dissents. The plaintiff sues to collect a balance due him on contract with the defendant, and for damages for breach of the contract. The verbal contract was for "large quantities of timber, growing and felled," on divers tracts of land on the Cheoah and Little Tennessee rivers and their tributaries. In his complaint the *Page 581 plaintiff alleges that, under a contract with defendant, he "cut and put a large quantity of logs into the Cheoah River, in Graham County, for which labor the said company partly paid plaintiff from time to time, leaving a balance of $500 still due therefore, which sum the plaintiff is entitled to recover, over and above any and all counterclaims and set-offs known to the plaintiff." The complaint also alleges that "the defendant, in 1893, pretended to sell to one Belding, one of the subscribers to its stock, all of its timber, cut and standing, and logs in the streams, with all its sawmill machinery, implements and utensils, at the insignificant sum of $100, while in fact this property was worth several hundred thousand dollars; that said sale and conveyance were inoperative and void, as being done without authority, and likewise fraudulent and void, as against creditors, for lack of valuable consideration and bona fides, and was further void against this plaintiff and its other creditors upon the actual intent which it had thereby to hinder, delay and defraud its creditors." It further alleges that "the defendants are nonresidents and cannot, after (930) due diligence be found; that he has taken out a warrant of attachment, and had the same levied, upon a large quantity of logs in Graham County, in the streams and outside, and on the standing timber on said sixty-nine tracts of land," etc. He then demands judgment for his debt and that the attached property be sold to satisfy his judgment. To this complaint no answer or demurrer was filed, and at Spring Term, 1895, a judgment by default and inquiry was rendered. At Fall Term, 1895, the inquiry was taken, and "by consent, the plaintiff having been allowed to so amend his complaint as to set up such claim as he may have against the defendant for damages sustained by him by reason of defendant's breach of its contract, and the defendant being allowed to answer, denying the damage alleged, and both amendment and answer being treated as in, without objection, certain issues were submitted to the jury," which, with the responses thereto, are as follows:
1. "What amount is due and owing to plaintiff from defendant on account of logs cut and delivered, and others cut and not delivered?" Answer: "Three hundred and thirteen dollars and twenty-five cents."
2. "What damage has plaintiff sustained by reason of defendant's breach of contract?" Answer: "Eighty-six dollars and seventy-five cents."
Judgment was entered for $400, with interest till paid, and interest on $313.25 from 21 August, 1894, till the first day of this term, and costs.
The plaintiff testified, over the defendant's objection, that he contracted to sell the trees, in parol, with John Swan, agent of the *Page 582 defendant company, and that he had cut, sawed and peeled large quantities of different kinds of wood, and had delivered 7,000 feet of poplar, of the lengths required by the contract, all of which testimony the defendant objected to, on the ground that Swan had no authority to make the contract, and because the contract was void under (931) the statute of frauds, the same being for an interest in real estate and not signed by the party to be bound thereby. The objection was overruled, and this evidence was allowed to go to the jury. The plaintiff also testified that he was damaged $500, in addition to the timber contract. No objection to the last evidence was made. Plaintiff offered in evidence a paper containing an account in favor of the defendant for articles sold to plaintiff, on which was a written statement, made by Swan, as to the price the plaintiff was to have for the timber when delivered. Objected to by defendant as evidence. The court admitted it, "with the remark, made in a very pointed manner, that he would allow the paper to be read and risk it; that when people contracted debts they must pay them." Defendants excepted. The court "made a calculation and statement of amount claimed by plaintiff as per alleged contract price, and as testified to by plaintiff, and handed the same to the jury, and told them that it was what the court had calculated to be due the plaintiff by defendant on the contract, but for the jury to make their own calculations; that they were not bound by his; that it was for the jury to say from the evidence what sum was due the plaintiff; that the plaintiff was entitled to the contract price, less the sum it would cost to put the timber to the river, where it was to be delivered. Defendants excepted." The court said to the jury that the plaintiff was entitled to damages, and the amount was for the jury to find from the evidence. Defendants excepted. The transcript in this case is not as easily understood as some we have, and we have copied several of its parts in order that we may arrive at it correctly, as near as may be. It may be observed that the defendant omits to answer or deny the allegation of the original complaint, in which the contract and part delivery of the goods are alleged; so these allegations stand undisputed and affirmed (932) by the judgment by default. The permission to file an answer to the amended complaint, as a count for damages for the breach of contract, was limited by the terms of the order to a denial of the damages for the breach, and did not extend to a denial of anything in the original complaint and judgment by default. The defendant offered no evidence denying the contract or damages, nor to the agency of Swan, as testified to by the plaintiff. He simply relied on the chance of discovering a mistake on the part of the court at the trial. He does not deny the allegations himself, nor use Swan as a *Page 583 witness, nor anyone else. He does not plead the statute of frauds, and he cannot avail himself of the statute without pleading, as verbal contracts are not void, but only voidable, at the option of the pleader. Curtis v.Lumber Co., 109 N.C. 401; Loughran v. Giles, 110 N.C. 423. In this connection it may be stated, to avoid misapprehension, that if the complaint alleged a parol contract for land, and the answer denied the contract and set up a different contract, the plaintiff could not introduce oral proof of his claim, if objected to by defendant, although the statute of frauds is not pleaded. Gulley v. Macy, 84 N.C. 434; Holler v.Richards, 102 N.C. 545. A contract required to be in writing can be proved only by the writing itself, not only as the best, but as the only admissible evidence of its existence. Morrison v. Baker, 81 N.C. 76. The Code, sec. 683, requiring corporation contracts exceeding $100 to be in writing, was repealed by Laws 1893, ch. 84.
The first exception, except as already noticed, is that Swan had no authority to make the contract. The defendant, having received and paid for a portion of the logs, as alleged in the original complaint, and not denied, and thereby ratified the contract made by Swan, is concluded as to his authority to make the contract. The defendant, in his argument, however, insists that the judge ought to have set out the evidence pertinent to the question of agency, and relies (933) on The Code, sec. 412 (2). So far as we can see, the evidence is all in the record before us. We cannot say that it is so, but the appellant nowhere suggests that it is not so. We hold, however, that question to be settled by defendant's ratification, as above stated. The plaintiff testified that he was damaged $500, in addition to the timber contract, and there was no exception to that evidence. This is the only evidence on the question of damages that went to the jury. The objection to the account of defendant for articles sold plaintiff, we suppose, was to the writing thereon by Swan, stating the price of the timber when delivered. This is without force, as it was only a statement by defendant's agent concerning the contract which he had made and they had ratified. The next exception was to the paper writing, above referred to and offered in evidence and admitted. "The court admitted the same, with the remark, made in a very pointed manner, that he would allow the paper to be read and risk it; that when people contracted debts they must pay them. Defendant excepted." Whether the exception was pointed to the admission of the paper, the pointed manner, or that when people contracted debts they must pay them, does not appear from the exception, as it should do. But assuming that it refers to the manner and the last part of the sentence, as defendant now argues, we must consider it that way. The Code, sec. 413, says: "No judge, in giving a *Page 584 charge to the petit jury, either in a civil or criminal action, shall give an opinion whether a fact is fully or sufficiently proved, such matter being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon." We do not approve the (934) use of such loose expressions, but the question still remains whether they are a violation of the statute and injurious to the party complaining. Numerous decisions on this question have been made, and they all agree that the judge is not permitted to express an opinion as to whether a fact, which is for the jury to find, is fully or sufficiently proved, in his charge to the jury. In the present case the remark complained of was not made in his charge to the jury, but was an announcement to counsel as to the competency of the evidence, made in the presence of the jury. In S. v. Boone, 82 N.C. 637, it was held that "the language of a judge, in his charge to the jury, must be read with reference to the evidence and points in dispute, and construed in reference to the context."
In S. v. Brabham, 108 N.C. 793 (7), it is said: "Remarks by the court of doubtful propriety are not ground for exception, where it appears they did no harm to the prisoner."
In S. v. Browning, 78 N.C. 555, it is stated: "In most cases, in the course of the trial, it becomes necessary for the judge to pass upon and decide collateral questions of fact, and such decisions, taken abstractly and without their proper connection with other things, might seem to be an opinion upon those matters belonging exclusively to the jury; but it must be presumed that their true import and bearing are understood by the jury, and unless it appears with ordinary certainty that the rights of the prisoner have been in some way prejudiced by the remarks or conduct of the court, it cannot be treated as error."
In S. v. Angel, 29 N.C. 27, "the act of Assembly restraining judges from expressing to the jury an opinion as to the facts of the case only applies to those facts respecting which the parties take issue or dispute."
(935) In S. v. Dick, 60 N.C. 440, after stating the general rule, the Court says: "But if the party excepting could not possibly be injured by it, it is not ground for a venire de novo." Recognizing the general rule, these cases are cited to show that unless it appears reasonably certain that the party is prejudiced, in the minds of the jury, there is no error.
In the present case the judge was not charging the jury. There was a judgment by default and inquiry, establishing a legal liability of the defendant to the plaintiff for something. There was no *Page 585 evidence in the case except the plaintiff's; there was no denial by plea or proof on the part of the defendant, and it appears unreasonable to suppose that the verdict would have been different without the remark of the court, as above stated. As to the manner of the judge, we have no suggestion, except so far as the words explain themselves.
The next exception was that the judge made a calculation" as per alleged contract price and handed it to the jury," telling them to make their own calculation; that they were not bound by his; that they must find the amount from the evidence, etc., as we have already stated. This seems harmless, and we understand it is frequently done by the judge, without prejudice to anyone. The interest on $313.25 from 21 August, 1894, till the first day of the trial term must be eliminated on final settlement, as we must presume that was included in the verdict as rendered.
The main question pressed upon our attention was the rule of damages in a case like the present. His Honor instructed the jury that "the plaintiff was entitled to the contract price, less the sum it would cost to put the timber to the river, where it was to be delivered." The rule seems to be settled in this State, but the diversity of opinion in other places and the insistence of counsel has induced us to (936) look at the authorities and refer to some of them.
By many it is urged that the measure of damages is the difference in the market value of the articles at the place of delivery and the contract price. By others it is claimed that the measure of damages is the contract price, less any necessary cost of putting the goods at the place of delivery.
In Parker v. Smith, 64 N.C. 291, it was held that a judgment by default operates as an admission of a cause of action, but the plaintiff must prove the delivery of the goods and their value.
Adrian v. Jackson, 75 N.C. 536: That when a claim for damages is certain in amount, or can be rendered certain by mere computation, there is no need of proof, as the judgment by default admits the claim. An inquiry is necessary only when the claim is uncertain.
Hartman v. Farrior, 95 N.C. 177: When a verified complaint alleges a promise to pay a sum certain on default, the plaintiff is entitled to a judgment final, but when it alleges the value of the property, without any promise, the judgment should be by default and inquiry.
Garrard v. Dollar, 49 N.C. 175: Upon a judgment by default, nothing that would have amounted to a plea in bar to the cause of action can be given in evidence to reduce the damages. In that case the question of the measure of damages in land sales was first passed on in our State, and it was held that the measure of damages against a vendee for refusing to perform his contract for the purchase of land *Page 586 — the vendor being ready to perform his part — is the purchase money, with interest. The English rule was that the difference between the value and the contract was the measure. Sedgwick Damages, (937) 192, so states in regard to land sales, but admits (on page 281) that it is different in respect to sales of personal chattels.
Oldham v. Kerchner, 81 N.C. 430: Here the plaintiff sues for failure to deliver corn to be ground at his mill, and the measure of damages isprima facie the difference between the cost of grinding and the contract price, and the burden is upon the defendant to prove all matters in reduction of such damages.
Hinckley v. Steam Co., 121 U.S. 264, 275: The defendant agreed to purchase rails from the plaintiff at $58 per ton. On refusal to receive the rails the defendant was liable for breach of contract, and it was held that the rule of damages was the difference between the cost per ton of making and delivering the rails and the $58.
3 Parsons on Contracts, 209: The rule is well stated by the author — "If the goods remained in the vendor's hands it may be said that now all his damages is the difference between their value and the price to be paid, which may be nothing. This would be true if the vendor chose to consider the articles as his own, but it does not seem that the law lays upon him any such obligation. He may consider them as his own if there has been no delivery, or he may consider them as the vendee's, * * * subject to his call or order, and then he recovers the whole of the price which the vendee should pay." In either case the action is upon the breach of the contract by the vendee, and it seems reasonable that this election should be given to the vendor and not to the vendee.
Sands v. Taylor, 5 Johns., 305: Here, after receiving a part of the cargo, the defendant refused to receive the balance, and the plaintiff sold it at the best price in the market, and by action recovered the difference between the proceeds of the sale and the original contract price.
Bement v. Smith, 15 Wend., 493: The defendant refused (938) to take a carriage built according to the terms of the agreement. The plaintiff deposited the carriage with a third party and notified the defendant. The plaintiff recovered the contract price.
Masterton v. Mayor, 42 Am. Dec., 38: Held, that the measure of damages was the difference between the cost of doing the work and the agreed price to be paid.
We approve the rule pointed out in these authorities. The recovery is only the proximate contract profits and does not fall within the line of inhibited speculative profits. A party contracts, expends his time, skill and capital, and assumes risk. It would seem unreasonable to *Page 587 deprive him of his direct profits and relieve the other party simply because he has violated the agreement. With the record as it comes to us, we can see no error, and, with the modification already indicated, the judgment is
Modified and Affirmed.