May 13, 1924. The opinion of the Court was delivered by The "case" contains the following statement:
"This action was commenced in the County Court for Richland County by service of summons and complaint on the * * * day of May, 1921, to recover the sum of $2,622.13 on an open account for automobile tires and tubes sold and delivered by the plaintiff to the defendant. The defendant by his answer alleges that the goods referred to were inferior and defective, and that there was failure of consideration for same in whole or in part; that therefore nothing is due to the plaintiff on said account; and, in addition thereto, sets up a counterclaim in the sum of $3,000, alleging that the defendant paid plaintiff $6,000 for the tires and tubes, and that they were faulty, rotten, and defective and of no value, and on account thereof there was a failure and want of consideration in whole or in part, and that defendant suffered a loss of $3,000, and alleging that he had been damaged by reason of the sale to him by the plaintiff of the defective tires and tubes, as a result of which he had to close his business. Plaintiff replied to this counterclaim in the form of a general denial. The jury rendered a verdict in favor of the defendant on the counterclaim in the *Page 347 sum of $3,000, judgment was entered, thereon, and thereafter in due time this appeal was taken."
Exception 1 complains that the presiding Judge committed error in permitting H.F. Hoover, the defendant, to testify with respect to overhead expenses in running the business, for the purpose of selling tires and tubes purchased by him from the plaintiff, when such testimony, the plaintiff contends, was not in response to any allegation of the defendant's counterclaim, and, as a matter of law, were not recoverable under the facts of this case.
Exception 2 complains of error on the part of his Honor in charging the jury as to overhead expenses, incurred by the defendant in conducting the business, for the purpose of selling tires and tubes which were unsalable. We find the following ruling by his Honor when the case was being tried:
"Mr. McCants: I think this is going pretty far afield — are we to be held for all expenses he was put to in running this business?
"The Court: That necessarily was an expense, and I was looking over some general principles this morning. Here is a question I have to answer. Suppose I go into a business for selling certain products — a certain product — to get a certain part of the price coming to me on that product, and suppose that product is unsound, now, gentlemen (addressing jury), I am not saying there was unsoundness here, I am just supposing — now suppose that the product is unsound and in order to carry on that business I have certain overhead expenses, and suppose I find out the business is a failure as a direct result of unsoundness, what becomes of these overhead expenses I was put to in establishing that business, either to the full extent of the expenses, or topro rata share of the expenses as the case may be."
The general rule is that for a breach of contract the defendant is liable for whatever damages follow as a natural consequence and proximate result of his conduct, or which may reasonably be supposed to have been *Page 348 within the contemplation of the parties at the time the contract was made as a probable result of a breach of it.
The general rule as to the measure of damage is the difference between the actual value of the property at the time of the sale and what its value would have been if it had conformed to the warranty. But it is a well settled principle that profits or gains prevented, as well as looses sustained, may be recovered, as damages for a breach of contract, where it can be rendered reasonably certain by evidence that they have naturally resulted from the breach, and this rule is applied to damages for a breach of a warranty. 24 R.C.L., 259; 24 R.C.L., 256; 3 Sutherland on Damages, § 671.
"Under the rule allowing a recovery of damages resulting naturally and directly from a breach of warranty, any and all expenses, the incurring of which can be traced directly and naturally to the breach of the warranty, are an element of damage, and it is not necessary that such expenses should have been actually paid if the liability therefor is incurred." 35 Cyc., 472.
A good deal of appellant's argument is directed to matters not made in the Court below. Only such issues as were raised or passed on by the trial Court will be considered.
No motion was made to make the answer and counterclaim more definite and certain, and we see no reversible error in the admission of the evidence, or in his Honor's charge to the jury as complained of in exceptions 1 and 2. Sutherland on Damages (3d Ed.) § 665, p. 1943; Martin v. S.A.L. Ry., 70 S.C. 8; 48 S.E., 616.Plunkett v. Insurance Co., 80 S.C. 410; 61 S.E., 893.Gamble v. Insurance Co., 95 S.C. 196; 78 S.E., 875.Neely v. C. N.W. Ry. Co. (S.C.), 117 S.E., 55. These exceptions are overruled. *Page 349
Exception 3 is overruled; his Honor's remarks when he ruled on the admission of testimony were not such as made him a participant with the jury. The exception does not point out when the remarks were made.
All exceptions are overruled, and judgment affirmed.
MR. JUSTICE FRASER concurs.
MESSRS. JUSTICE COTHRAN and MARION concur in result.
MR. CHIEF JUSTICE GARY did not participate.