Opinion
No. 67-879.
May 21, 1968.
Richard G. Taylor, Miami, for appellant.
Feibelman, Friedman, Hyman Britton, Miami, for appellee.
Before PEARSON, BARKDULL and HENDRY, JJ.
Appellant, defendant in the trial court, seeks review of an adverse judgment entered by the trial court pursuant to a motion for a judgment N.O.V., in an action for monies due for goods sold and delivered.
The appellant ordered certain carpet from the appellee for a total price of $11,444.57. The appellant received a credit of $1,586.05, leaving a balance due of $9,858.52. Upon receipt of the first of several deliveries of the goods, it became apparent that they were not up to quality and the appellee was so notified. The goods were ultimately sold retail to third persons, and the parties attempted to adjust their differences without success. Thereupon, the instant suit was commenced the appellee seeking to recover the balance of the account, to wit: $9,858.52, to which the appellant filed an answer which pleaded affirmatively the failure of the goods to be delivered as represented. The jury returned a verdict in the sum of $6,579.00. Thereafter, pursuant to a motion for judgment N.O.V., the trial judge entered a final judgment for the full amount sought by the plaintiff. This appeal ensued.
It is apparent from the verdict of the jury that they found that the goods, as delivered, were not of the quality as represented and, if there is evidence in the file upon which they could determine the value of the goods as actually received, their verdict should be sustained. Standard Growers Exchange v. Howard, 82 Fla. 97, 89 So. 345; McDaniel v. Mallary Bros. Machinery Co., 6 Ga. App. 848, 66 S.E. 146; 78 C.J.S. Sales § 455, p. 102. However, notwithstanding the finding by the jury that the goods as received were not of the quality represented, if there is no evidence upon which the true value of the goods as received may be ascertained then their verdict was erroneous and the judgment N.O.V. should be sustained. Carter v. American Slicing Mach. Co., 23 Ga. App. 422, 98 S.E. 365; Ludden Bates Southern Music House v. Toney, 39 Ga. App. 488, 147 S.E. 719; Maeder Steel Products Co. v. Brewster, 154 Wn. 120, 281 P. 14; 78 C.J.S. Sales § 455, p. 102.
Upon examination of the record, we fail to find any evidence as to the value of the goods as received. Therefore, we find no error in the trial judge entering the judgment, notwithstanding the verdict, and said judgment be and the same is hereby affirmed.
Affirmed.