May 4, 1925. The opinion of the Court was delivered by The action herein was for damages for breach of two alleged contracts. The issues raised by the pleadings will be seen by reference to the complaint and answer. The issues were tried before his Honor, Judge Rice, and a jury, and resulted in a directed verdict in behalf of the plaintiff for $140.90 on the first cause of action, and for $1,362 on the second cause of action. The defendant appeals from the judgment on the second cause of action.
T.W. Bennett, one of the defendants, testified as follows on redirect examination:
"You were asked if you sent the second $500 deposit. Why didn't you send it? A. Our letter indicated that our trade was off. Mr. Gregory decided he didn't want to be held in abeyance, and instructed us to countermand the order.
"Mr. Todd: Objects to reference to Mr. Gregory.
"Court sustains the objection.
"Q. Had you ever received any confirmation on your *Page 372 offer on the second lot? A. No, sir. That is why I kept wiring them.
"Q. I note in your letter of May 14th, in reply to their letter, of May 10th, you say that you had no way of holding those people to their contract. Did you have any confirmation or any way to hold them to the contract? A. No, sir.
"Mr. Todd: We object. His statement is a conclusion. That is a question of law. I think it is incompetent.
Court: As all the correspondence was by mail or wire and all the evidence is in writing or print, that would be a matter for the Court and not for the witness. I think the objection is well taken. I will have to sustain the objection.
"MOTION FOR DIRECTION OF VERDICT "Mr. Todd: We ask the Court to direct a verdict for the plaintiff on both causes of action; as to the first cause of action for $157.90, on the second cause of action for $1,662; on the first cause of action upon the ground that the contract was in writing and complete in every respect and was breached by the defendant, and was closed out according to law properly, and a loss of $157.90 sustained, and there is no conflict in the testimony on any material element necessary to establish that contract, and that amount is the difference between the contract price and the market price at the time the contract was closed; for the same reason and upon the same ground upon the second contract.
"(After hearing arguments) Mr. Todd: For the purpose of this motion, we are willing to give you the interest.
"(After hearing arguments) Mr. Babb: We think we are entitled to the direction of a verdict on the second cause of action.
"(After hearing arguments) Court: On the first cause of action, I will direct a verdict for the plaintiff for the amount less the interest, $17, I believe, is the interest which you have offered to pay. *Page 373
"On the second cause of action I will have to submit it to the jury. There are some questions to go to the jury. If they received the letter of December 10th, notifying them that he didn't want the oats, they should have taken whatever steps were necessary to minimize their damages. The question to go to the jury is upon the issue; where a man is going to be damaged by another and he can minimize his damages he must do it.
"(After hearing arguments for and against the motion) Court: I don't hold that he could at his own option breach the contract, but, if he said that he was not going to carry out the contract, the question is whether or not it was their business to minimize the damages. (After hearing arguments) Mr. Todd: There is doubt in my mind as to whether or not we are entitled to one-half per cent carrying charge, if the letter of December 10th was received by us. I amend my motion on the second cause of action from $1,662 to $1,362, eliminating that matter of carrying charge.
"(After hearing further arguments) Court: I am afraid I will have to direct a verdict for the plaintiff. I don't see anything else to do under the decisions of the Supreme Court. There is no question that these telegrams — even if this other paper didn't reach him — the telegrams make up the contract."
The defendants appealed upon exceptions which will be reported.
The case of Cooper Griffin, Inc., v. W.C. Cooke Co., Inc., 122 S.C. 314; 115 S.E., 312, shows so conclusively that the issues should have been submitted to the jury that we do not deem it necessary to cite other authorities.
Reversed and remanded, for a new trial.
MESSRS. JUSTICES WATTS, FRASER and MARION and MR. ACTING ASSOCIATE JUSTICE JAS.W. JOHNSON concur.
MR. JUSTICE COTHRAN did not participate. *Page 374