Love v. Barnesville Mfg. Co.
Superior Court of Delaware, New Castle County
March 11, 1901
No Number in Original
[*153] [**536] LORE, C. J.:--You have proved by six witnesses the actual [*154] condition of that yarn, and have elected the kind of witnesses you wished to prove it by. We hold that you cannot now produce one or more experts and prove by them the condition of the same yarn.
LORE, C. J., charging the jury:
Gentlemen of the jury:--The plaintiff, Henry M. Love, claims that by contract made October 4th, 1899, he bought by sample from the Barnesville Manufacturing Company, the defendant, 150,000 pounds of 11s carded peeler yarns on cones, at the price of fourteen cents per pound; to be delivered f. o. b. at Wilmington, Delaware, at the rate of 5,000 pounds per week, commencing January 1st, 1900. That the defendants failed to deliver [**537] according to sample, under the terms of the contract, about 137,039 pounds of the yarn; that he the [***3] plaintiff was thereby compelled to go into the market and buy that quantity of yarn, at prices ranging from eighteen to nineteen cents per pound, to take the place of the yarn which was not so delivered; that he paid therefor $ 6,595.81 in excess of the contract price. This sum, with interest thereon, he claims to be due him from the defendant by way of damages.
The defendant claims that the contract was annulled by agreement of the parties made December 22d, 1899; and another contract substituted therefor for the delivery of 3,000 pounds per week for fourteen weeks, commencing January 1st, 1900; that in April 1900, the defendant was prevented from complying further with the then existing contract by the refusal of the plaintiff to receive any more yarn from it and to pay for the yarn already delivered.
I need not go further into the details of the case and circumstances, as you will remember the facts shown by the evidence and are to be governed solely by such recollection in making up your verdict.Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.
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19 Del. 152 *; 50 A. 536 **; 1901 Del. LEXIS 6 ***; 3 Penne. 152
HENRY M. LOVE vs. BARNESVILLE MANUFACTURING COMPANY, a corporation of the State of Georgia.
Prior History: [***1] Superior Court, New Castle County, February Term, 1901.
ACTION OF ASSUMPSIT, (No. 17, September Term, 1900) on a contract for the delivery of 150,000 pounds of "lls carded peeler yarn on cones." Plaintiff claimed, including interest, $ 6728.52 as damages for the non-delivery of 137,039 pounds of the yarn according to sample, under the terms of said contract.
See further facts in the charge of the Court.
At the trial Ponder, for plaintiff, having proved by six operatives in the plaintiff's mill the poor quality of the yarn sent by defendant under the contract, produced as an expert on the subject of cotton yarns, Thomas Ravy, and propounded to him the following question:
"Will you look at these yarns which I hand you and tell me whether, in your opinion, they are good carded peeler yarns?"
Objected to by counsel for defendant, on the ground that the same matter had already been testified to by six witnesses, which was the limit allowed under the practice of the Court. Defendant's counsel admitted that six lay witnesses had testified upon the point inquired about, but contended that the Court had never ruled that an expert could not be examined generally upon [***2] the same subject matter after six witnesses had testified to the fact from actual observation; that it was a totally different line.
Disposition: Verdict for plaintiff for $ 6728.52.
damages, yarn, pounds
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