Opinion of the Court.

[100 S. C. 1180; 35 Ill. App. 540; 103 Ill. Ap. 632; 27 Pa. Super. Ct. 366. Measure of damages in trover: 2 Speers L. 487; 6 Rich. L. 310. In action for breach of contract: Sutherland, Damages, 652; Ib., p. 260; 25 Ind. 433; 4 U. S. (L. ed.) 200.

Messrs. Townsend & Rogers, for respondent, cite: As to alleged error in charge: 94 S. C. 224; 95 S. C. 104; 75 S. C. 549; 92 S. C. 119; 78 S. C. 200. Not prejudicial: 93 S. C. 299. Admission of telephone conversation not prejudicial: 91 S. C. 507; Ib. 50; 25 A. & E. Enc. of L. (1st ed.) 885; note in 6 L. R. A. 1185.

March 1, 1915.

The opinion of the Court was delivered by MR. JUSTICE WATTS.

This was an action for damages for breach of contract. The defendant-appellant agreed to deliver to plaintiffrespondent carloads of hay at different times and failed to do so. Plaintiff brought his suit, alleging that he has been damaged for the sum of $310.95. The cause was tried before Judge Frank B. Gary and a jury, at the Fall term of Court, 1914, for Marlboro county, and resulted in a verdict in favor of the plaintiff for $198.95. Defendant appeals and by four exceptions asks for a new trial. The first ground of appeal alleges error in admitting an alleged conversation over the telephone with the defendant over defendant's objection

It appears from the record that the plaintiff, Medlin, was on the stand and attempted to detail a conversation he had with the defendant over the telephone and upon objec

tion the following took place: "The Court: Let him 1 tell exactly what took place, and then I will determine. Q. Mr. Medlin, all that I care for you to say-did you make complaint as to the quality of the hay? The Court: He can tell what he

A. I did.

Objected to.

did. Q. Tell what you did? A. Well, I put in a long distance call for the Adams Grain and Provision Company. I had no acquaintance with them, and did not have the name of any. After the connection was given I asked if it was them and they said it was, and I told them that I paid the draft for the hay and unloaded it, and that it was very inferior in quality, more inferior than what I bought. They said they were surprised, that they had bought the hay from one of the most reliable shippers in the west, and they presumed the others would come up to grade. The Court: The jury are the ones to judge whether he was talking to the Adams Grain and Provision Company or not. He gives it as his opinion that he was. Having explained what took place, I allow it to go to the jury, and they are to determine whether or not he was talking to the grain company."

This exception is overruled. His Honor committed no error, and the defendant introduced testimony, but he did not deny, explain, or contradict the plaintiff on this point, and it was competent to go to the jury for what it was worth. Plaintiff put in a long distance call for defendant; he was connected with that office; some one responded; he made complaint as to quality of hay and the person conversing expressed surprise, telling how hay was procured, bought by them from another party for plaintiff, and showed a familiarity with the transaction from which jury could infer that the plaintiff had procured the right party, and the one he had asked to be connected with by long distance phone, the defendant in this case, and the admission of evidence is not shown to be prejudicial to the defendant.

Exceptions two, three, and four are practically the same, and allege error on the part of the presiding Judge in his charge to the jury as to the measure of damages. While

it is true that his Honor was in error in charging the 2 jury that "the measure of damages was the difference in the contract price and the highest market price of the same article at the time the suit was brought,”

Opinion of the Court.

[100 S. C. as the law is that the measure of damages is the difference between the contract price and the market price at the time of the breach of the contract, yet this is harmless in view of the fact that in other portions of his charge he told them that "the measure of damages would be the difference in the value of the article furnished and the article purchased at the time and the place agreed upon for the delivery." He told them this more than once. At the close of his

charge the Judge asked if there was anything fur3,4 ther, addressing himself to both counsel and defend

ant's counsel, asked for and obtained from the Court a further instruction, but overlooked what the Judge had charged in reference to damages. It is unfortunate that attorneys engaged in a case do not pay particular attention. to Judge's charge so as to aid him when he calls upon them at close of charge for further suggestions in order that he may charge, or refuse, or correct, or explain. explain. His Honor was not obliged to ask for an expression, but inasmuch as he did, if counsel had caught what he charged in reference to damages it would have been their duty to have called his attention to it. The jury, by their verdict, show that they were not misled by this error and that it was harmless, as they did not adopt the highest price as a measure of damages; they only awarded plaintiff judgment for $198.95, whereas he had sued for $310.95, and if they had fixed the highest price under his Honor's charge it would have been much more than amount found. We are therefore of opinion that his Honor's error was harmless and not prejudicial to the defendant, and all exceptions are overruled and judgment affirmed.

WILLIAMS v. COLUMBIA MILLS CO. ET AL.

LANDLORD AND TENANT.

(85 S. E. 160.)

MASTER AND SERVANT. EVICTION. JUDGMENT. RES JUDICATA. EVIDENCE. DAMAGES. APPEAL AND ERROR. ISSUES.

1. MASTER AND SERVANT-EVIDENCE-Testimony of a servant that he was discharged because he quit his master's work to attend to his personal enterprise is not prejudicial to the master.

2. DAMAGES EVIDENCE.-A party, after stating the facts, may give his estimate as to the amount of damage done to property by defendant or its agents.

3. LANDLORD AND TENANT-RENT-PAYMENT.-Where the payment of rent is at issue, testimony that it has been paid by a third party is relevant.

4. EVIDENCE-REPLY.-Where a party undertook to show a particular kind of house was to be rented only to a person furnishing more than one hand to the mill, testimony that such houses were rented and occupied by families furnishing only one hand was admissible in reply.

5. LANDLORD AND TENANT-EJECTMENT JUDGMENT-RES JUDICATA.— A judgment rendered by a magistrate evicting a person from premises under Civil Code 1912, sec. 3509, cannot be collaterally attacked, and estops such person from denying that he was such tenant, and from showing that he was wrongfully dispossessed.

6. LANDLORD AND TENANT-EJECTMENT-DAMAGES.-A tenant wrongfully dispossessed of leased premises may recover punitive damages against the landlord, under Civil Code 1912, sec. 3509.

7. APPEAL AND ERROR-ISSUES.-Whether there was any evidence to sustain a finding for punitive damages will not be considered on appeal, where not raised below by motion for nonsuit or the direction of a verdict.

Before WILSON, J., Lexington, November, 1913.

versed.

Re

Action by Henry M. Williams and Monnie Williams against Columbia Mills Company and S. P. Venson. From judgment for plaintiff, the defendants appeal. The facts are stated in the opinion.

FOOTNOTE.—As to damages recoverable by tenant in action for wrongful eviction, see notes in 6 A. & E. Ann. Cas. 460; Ann. Cas. 1912a, 860.

Messrs. C. M. Efird and B. L. Abney, for appellant, submit: Landlord not liable for damages, except for an unlawful ejectment authorized and directed by a magistrate who had no jurisdiction either of the subject matter or of the person of the tenant: 3 Strob. Eq. 44. Proceedings for forcible entry and detainer under Civil Code 1912, secs. 4068 and 4069, prescribing treble damages, prevents punitive damages. Charge as to landlord's right to eject: 58 S. C. 145; 32 S. C. 410; 39 L. R. A. 419; 90 S. C. 50. Error to submit issue as to punitive damages: 90 S. C. 50.

Messrs. Melton & Sturkie and Thurmond, Timmerman & Callison, for respondents: Relevancy of testimony to be determined by the Judge in his discretion: 65 S. C. 26; 78 S. C. 23; 83 S. C. 103; 85 S. C. 207; 98 S. C. 121. Objection not made in time: 67 S. C. 175. Estimate as to damages: 65 S. C. 1; 73 S. C. 557. Eviction proceedings: 71 S. C. 236; 54 S. C. 255; 24 Cyc. 1406. Punitive damages: 62 S. C. 80; 72 S. C. 189; 13 Cyc. 105; 24 Cyc. 1399. Rule Circuit Court 75: 88 S. C. 89; 93 S. C. 543.

March 29, 1915.

The opinion of the Court was delivered by MR. JUSTICE FRASER.

This is an action for actual and punitive damages, brought by the plaintiffs against the defendants, for negligently and maliciously ejecting them from a dwelling house owned by one of the defendants.

It seems that the plaintiff, Henry M. Williams, was employed by the defendant, Columbia Mills Company, as a weaver. That he asked for leave of absence to attend to some private business, but was refused permission. Williams left without permission and his loom was given to another. Mrs. Williams also worked in the mill, but the house was one provided for operatives and set apart to Mr. Williams. Mr. Williams came back and demanded his loom,