delivered the opinion of the court:
The question of jurisdiction .having already been discussed and decided in the case of Heilman vs. Martin, and James Hanna vs. Henry Harter, we consider it unnecessary to make any further remarks upon the subject than to state, that from the pleadings, the court below rightfully took cognizance of the cause.
The defendant below excepted to the opinion of the court, and spread his exceptions on the record in admitting the testimony of one of the witnesses in relation to the price of pork, which is said to be inadmissible, and therefore, illegal. The declaration sets out a special contract, and this being the case, the plaintiff is required to prove his agreement as laid. That contract is, that he bought of the defendant ten hogs, to be delivered six weeks from the date of the agreement, at the defendant’s dwelling-house; and upon the delivery thereof,'he was to pay the plaintiff four dollars per hundred for the pork. The proof substantially supports this allegation, though it does it in a confused and somewhat imperfect manner. The evidence shews that the plaintiff first refused to take the hogs at the price agreed on, because he could not make up a drove of fifty or sixty head; that he afterwards called again and agreed to take them; to which the defendant consented. He then sent his agent to receive the hogs upon the day appointed, but the defendant refused to deliver them, upon the ground that the agent was not legally authorized to receive them. So far the proof may be considered "as sustaining the declaration.
But the enquiry still remains to be determined, what is the correct standard or criterion in regard to the amount of damages that the plaintiff is entitled’t to recover by reason of the non-compliance of the defendant with the conditions of his contract ? It certainly was the difference between the price agreed on between the parties, and the marketable price of the pork at the time of the delivery at the place fixed on by the agreement. And how should this difference be ascertained or computed? There is but one way by which it could be established. The plaintiff was bound to prove, by witnesses, what was the price of pork at the time for the delivery thereof at the place appointed; and the difference between that sum and the amount agreed to be paid by him, constituted the true damages that he was entitled to recover. This he failed to do, but proved, by a witness,that the defendant sold- his pork at four dollars and fifty cents per hundred. Did the testimony, thus given, prove that was the marketable price of pork at that time and place, or in the neighborhood ? Certainly not. The defendant might have sold his own pork at a greater or less sum than the ordinary selling price. But the fact of his so doing certainly does not establish the marketable price of the article. If this reasoning be correct the evidence objected was inadmissible, and therefore ought not to have been .permitted to be given to the jury on the trial; and as this was all the testimony that was offered upon that point, the verdict must have been erroneous in fixing the amount of damages assessed. The judgment of the court below must, therefore, be reversed, and a new trial awarded.