that the execution of the contract created an [5. Sales 418(12)-When parties presumed indebtedness in excess of the resources of the to anticipate a resale, and that profits would commission for the fiscal year 1923, and such be made, stated. allegation is but a mere conclusion of the pleader. [6] Aside from this, it will be observed that it is alleged that contracts aggregating over $2,000,000 were awarded at or about the same time the contract in question was executed. Construing this allegation most strongly against the pleader, it may be that the other contracts were let subsequently and that this contract may be valid, though some of the others are invalid. We conclude that the paragraph pleaded did not state a cause of action. The validity of the bonds has been attacked on several grounds, but there is no merit in any of these contentions and all of them have been abandoned on this appeal. The judgment of the lower court being in accordance with these views, it is affirmed. CLARKE, J., not sitting. ELDER v. FLORSHEIM SHOE CO. (Court of Appeals of Kentucky. June 9, 1925.) 1. Sales 420-Verdict properly directed for defendant in purchaser's action for damages for breach of contract in sales of shoes. In purchaser's action for damages for breach of contract to deliver shoes sold, court properly directed verdict for defendant, where plaintiff failed to prove any material damage by reason of breach alleged. 2. Sales 415-Burden on purchaser in action for damages for seller's breach of contract to prove his damages. In purchaser's action for damages for breach of contract to deliver shoes sold, burden was on purchaser to show that he had market for shoes, or that he could have sold them at profit, had they been delivered, and, if at a profit, amount thereof. 3. Sales 418(2)-Measure of damages for failure to deliver, where sale is of ordinary articles which can be purchased in convenient market, stated. Where sale is of ordinary articles of merchandise, which can be purchased in same or convenient market, measure of damages for tract price and market price of same or like goods at time and place of delivery. failure to deliver is difference between con If purchaser, by exercise of reasonable diligence, be unable to purchase similar goods in the markets, and seller at time of acceptance of tended to resell goods at a profit, both parties order knew that purchaser expected and inmust be held to have anticipated that a resale would take place, and that profits would be made. 6. Sales 418 (12)-Measure of damages for breach of contract, where seller knew that purchaser intended to resell goods, stated. Where purchaser, by exercise of reasonable diligence, is unable to purchase similar goods in market, and seller, when accepting order, knew what purchaser expected and intended to resell goods at profit, measure of damages for breach of contract is difference between contract price, plus freight and other expenses of delivery of the goods, and price at which they could have been sold by purchaser exercising reasonable diligence. SAMPSON, J. Appellant, Elder, a retail merchant of Lebanon, Ky., instituted this action in the Marion circuit court against the Florsheim Shoe Company, incorporated, wholesale shoe dealers of Chicago, to recover damages for breach of contract arising out of the refusal of the shoe company to ship and deliver to appellant, Elder, at Lebanon, two or more quantities of shoes ordered by him from the company through its salesman in February and May, respectively, 1919. The company defended on the ground that it did not accept orders of Elder sent in by its traveling salesman, because Elder had not furnished a financial statement showing his responsibility, at least one satisfactory to the company, and had in the past proved slow in paying for goods sold and delivered by the If sale is of manufactured articles of special unable to ship goods because of a strike at company to him. It also contended it was brand ordinarily on sale, but at time of refusal its shoe factory in Chicago, which preventto deliver cannot be found or produced in open market, recovery for breach of contract is ed it making the shoes ordered, the strike bemeasured by expected profits where profits ing a matter over which it had no control. were fairly within contemplation of parties. 4. Sales 418(15)-Measure of damages for breach of contract, where sale is of manufactured articles of special brand ordinarily on sale, stated. After issue joined, the case called for trial (273 S.W.) Over the objection of the company he answered: "There had been a little tendency to advance in a way in 1918 until the spring of 1919, so that along in the middle of 1919 everything went wild; just simply advanced head over heels. Shoes advanced very much, so Mr. Baynham told me." and a jury impaneled, appellant, Elder, of- company, and this the court ruled incompefered himself as a witness in his own behalf. tent. During his examination he was asked: He testified he was engaged in the mercan"Q. State whether or not there was an adtile business at Lebanon, and had been for vance in shoes in the year 1919?" some time previous to the commencement of the action; that he was acquainted with L. B. Baynham, traveling salesman of the appellee company, and that Baynham was the company's regular representative in the Lebanon territory in 1919; that on or about the 5th of February, 1919, he called at the store of appellee, Elder, for the purpose of solicitign orders for shoes for his company; that appellant, Elder, gave him an order for 81 pairs; that the salesman left with Elder a copy of the order, and this copy of the order is filed with the evidence and made a part thereof. To prove that the order was accepted by the shoe company, appellant, Elder, was asked if he received any letters from the company to that effect, to which he answered he had, but that he had lost one of the letters containing the acceptance of the order, and when asked the substance of the letter he gave it as follows: "They stated they were having a strike, but they hoped to get it settled within a few days, and just as soon as they did they would ship my order as soon as they could get it ready." He further testified that later he gave Mr. Baynham, as agent for the shoe company, two other orders. He then stated that part of the order given by him on February 5th had been shipped by the company, although the balance of it had been withheld. The part shipped consisted of two pairs of shoes, but on cross-examination he admitted the two pairs of shoes were special orders that might or might not have been included in the order given on February 5th, and when asked to point out the items on the order of February 5th which covered the two pairs of shoes shipped, he was unable to do so. The orders made in May, according to his testimony, included 215 pairs of shoes. He further testified that at the time he gave the orders for May, 1919, he had practically, if not entirely, paid the full amount of previous bills to the company. However, he admitted he was indebted to the company for the special orders of shoes which had been shipped, and admitted there was a controversy about an interest charge of $5.50. He was asked: "Q. How much advance was there on the shoes you ordered from the shoe company during 1919, from February on until September, 1919? A. Well, from February on until September, I would say." (Objection by defendant.) "Yes, sir; from $4 to $6 a pair." He further stated that the price of shoes started out in February at $7.90, and on September 13, 1919, they were $14.80 a pair. But on further examination he stated that he acquired his information concerning the advance in the price of shoes solely from Baynham, traveling salesman of the appellee shoe Baynham was the salesman for the appellee company. Later he was asked: "As to the advance you have spoken of, where did you get that information? Was that information given to you by other parties as to that advance? A. Given to me by their salesman. "Q. You don't know anything of your own knowledge? A. I am going on what Mr. Bayn ham told me." Filed with his evidence are a number of letters received by appellant, Elder, from the shoe company, the tenor of which is that the company was unable to ship the shoes on account of the strike than prevailing at its factory, and that appellant had failed to furnish a financial statement as requested by the company. He also filed a copy of letters written by him to the company in response to its letters, in which he insisted upon the shipment of the shoes, but he admits he failed to furnish the financial statement at the time it was requested. The letters of the comlant's orders had been accepted, but that they pany, however, rather intimate that appelwere unable to fill them because of labor troubles at the factory, and that when the labor troubles were settled the shoes would be shipped. In view of the fact the shoes were or dered in February for early spring delivthat the shoe company failed to definitely deery, and in May for early fall delivery, and cline to accept the orders until several months after they were given and received by it, we are inclined to the opinion that appellant, Elder, was entitled to treat the orders as having been accepted by the shoe company. The evidence up to this point, however, is not al together satisfactory. [1, 2] We are, however, of opinion that the trial court properly directed a verdict for the shoe company upon another ground, and that is, that appellant, Elder, failed to prove any material damage, if indeed he proved any damage, by reason of the breach of the contract, if it were breached. While there was some evidence that the price of shoes had advanced after the order was given by appellant, Elder, to the agent of the shoe company, there is absolutely no evidence tending to show that appellant had a market for the shoes, or that he could have sold them had they been delivered to him, or that if he could have sold them he would have sold | tract price, plus freight and other expenses them at a profit, and if at a profit, now much. The burden was upon appellant, Elder, to prove these facts. While there is some slight evidence tending to show there was a breach of contract to ship and deliver the shoes purchased by appellant, Elder, there is no evidence or proof tending to show the price at which the shoes could or would have been sold at his store had he received them, or the profit which he could and would have realized from a resale of the shoes, or that he could or would have made a profit on the shoes had he received them according to his purchase. Before turning the witness over for crossexamination, counsel for appellant, Elder stated: "Mr. Elder, as I understand from you, you are claiming damages on the shoes at $4 per pair?" To which Elder answered: "Yes, sir." The examination was there closed, and the witness was then passed over for crossexamination. There is no explanation by the witness as to how and why he "claims damages on the shoes at $4 per pair." Neither is there a statement he had been damaged or had lost profit on the shoes to the amount of $4 per pair, but merely a statement that he claims damages to that extent. There is a very great difference between a claim for damages and the existence of such damages in proving a case. Very frequently large claims are made when evidence is wholly wanting. That seems to be the case here. [3-6] The rule is that where the sale is of ordinary articles of merchandise which can be purchased in the same or a convenient market, the measure of damages for failure to deliver is the difference between the contract price and the market price of the same, or like goods, at the time and place of delivery. If the sale is of manufactured articles of a special brand, ordinarily found on sale, but at the time of the refusal to deliver, cannot be found or produced in open market, the recovery for the breach of contract is measured by the expected profits, where profits were fairly within the contemplation of the parties. If the purchaser, by the exercise of reasonable diligence, be unable to purchase similar goods in the markets, and the seller at the time of the acceptance of the order knew that the purchaser expected and intended to resell the goods at a profit, then both parties must be held to have anticipated that a resale would take place, and that profits would be made. In such case the measure of damages is the difference between the con of delivery of the goods, and the price at which they could have been sold by the purchaser, exercising reasonable diligence, at his place of business. Cordage Co. v. Luthy & Co., 98 Ky. 583, 33 S. W. 835, 17 Ky. Law Rep. 1126. In the case of Woerman v. McKiney Guedry Co., 174 Ky. 521, 192 S. W. 684, the measure of damages for failure to deliver goods of the kind involved in this case is held to be the difference between the contract price and the price at which goods of like character could have been obtained at the time of the purchase, or, if they could not be obtained in the market, the difference between the contract price and the price at which goods of like character could have been obtained at the time of the breach; or, if they could not be obtained in the market, the difference between the contract price and what the goods would have been worth to the buyer at the time he should have received them. In that case it was said the market price is to be ascertained as of the place of delivery, and that the measure of damages for the failure to deliver the goods is the difference between the contract price and the market price at which the goods could be resold, less the cost of transportation. The recovery is governed by the profits which the purchaser would have realized from a resale of the goods, provided he was unable, after the exercise of reasonable diligence, to secure other goods of like character in their place. Log Mountain Coal Co. v. White Oak Coal Co., 163 Ky. 842, 174 S. W. 721; Bates Machine Co. v. Norton Iron Works, 113 Ky. 372, 68 S. W. 423, 25 Ky. Law Rep. 931. We [7] It is said for appellant, however, that he was entitled to go to the jury because he had shown nominal damages at least. rather agree with him in this contention, and feel that the court should have instructed the jury to award him nominal damages, but we have often held that an appellant is not entitled, under the maxim "De mininis non curat lex," to a reversal of the judgment merely because he is entitled to nominal damages, and we have frequently refused to reverse judgments upon this ground. must adhere to that rule. Stone v. Adams Express Co. (not officially reported) 122 S. W. 200; White v. Glazer (not officially reported) 106 S. W. 289, 32 Ky. Law Rep. 570; Morgan v. Lexington Herald Co., 138 Ky. 637, 128 S. W. 1064; Vansant v. Ashland Waterworks Co., 200 Ky. 586, 255 S. W. 132. Judgment affirmed. We (273 S.W.) GALLOWAY et al. v. COMMONWEALTH. (Court of Appeals of Kentucky. June 9, 1925.) 1. Intoxicating liquors 242-Sentence of defendants to pay a fine of $500 and six months in county jail for possession of a still held not excessive. Sentence of defendants to pay a fine of $500 and six months in county jail for possession of a still held not excessive. 2. Criminal law 1159(5)-Appellate Court may not disturb verdict for excessiveness in criminal case, where punishment is within limitations fixed by Legislature. Court of review may not disturb verdict on ground of excessiveness in a criminal case, where punishment is within limitations fixed by Legislature; it being a matter within discretion of general assembly to fix limitation within which a jury may punish one convicted of crime. 3. Intoxicating liquors 239(1)—Instruction to find defendants guilty for possessing still held not erroneous. Instruction to find defendants guilty, if jury believed from evidence to exclusion of reasonable doubt that defendants, within the county and within 12 months before finding of indictment, were unlawfully in possession of an illicit moonshine still held not erroneous. to be fined after it had been shown that a still was found on his premises, unless he proved to satisfaction of court that he was innocent, while improper as being too broad, held not prejudicial, since finding of an illicit still on lands of a if there are no other circumstances which tend defendant is evidence sufficient to go to jury to disprove defendant's connection therewith. 9. Fines I-Statute requires court to sen tence defendant to hard labor, where he fails to pay his fine, and where jail sentence is inflicted. Under Rash-Gullion Act, relating to punishment of persons convicted thereunder, court is required to sentence defendant convicted thereunder to hard labor, where he fails to pay his fine, and also where a jail sentence is inflicted. Appeal from Circuit Court, Warren County. Nathan Galloway, Brinkley Johnson, Earl Green, and Will Green were convicted of pos sessing a still, and they appeal. Affirmed. Gardner, Oliver & Dixon, of Bowling Green, for appellants. Frank E. Daugherty, Atty. Gen., and Chas. F. Creal, Asst. Atty. Gen., for the Commonwealth. SAMPSON, J. The four appellants were convicted in the Warren circuit court on an indictment accusing them of the offense of unlawfully having an illicit moonshine still in possession, and fined $500 and adjudged to serve six months at hard labor in the county jail. As grounds for reversal of the judgment, they assign the following: "(1) That the verdict is excessive and against the law and evidence and a result of passion and prejudice; "(2) Failure of the court to properly instruct the jury; In prosecution for possession of a still, instruction, that defendants could not be convicted on testimony of accomplices unless cor- "(3) Failure of the court to instruct the roborated and that corroboration was not suffi-jury to find each of the defendants not guilty at cient if it merely showed offense committed and circumstances thereof, held not erroneous. 6. Criminal law 793-Instruction on reasonable doubt in liquor prosecution held not er roneous. In prosecution for possession of a still, instruction that jury should find defendants or either of them not guilty if it had reasonable the close of appellee's testimony, and also when all evidence had been introduced; "(4) Because of misconduct of county attorney in arguing the case; "(5) Newly discovered evidence; "(6) Incompetent evidence." [1, 2] The verdict seems rather heavy, but doubt as to their guilt or as to guilt of either $500 and six months in the county jail is a we are not prepared to say that a fine of of them, held not erroneous. 7. Intoxicating liquors 238(1)—Question of defendants' guilt in prosecution for possession of a still held for jury. In prosecution for possession of a still, question of defendants' guilt held for jury. 8. Criminal law 1171(1)—Improper argument of county attorney, in prosecution for possession of a still, held not prejudicial. County attorney's argument, in prosecution for possession of a still, that defendant ought greater penalty than should be inflicted for the offense of which appellants were convicted. In fact, we are not permitted to disturb a verdict upon the ground of excessiveness in a criminal case where the punishment is within the limits fixed by the Legislature; it being a matter within the discretion of the General Assembly to fix the limits within which a jury may punish one convicted of crime. Dillard Todd and Dewey Todd v. Com., 195 Ky. 379, 242 S. W. 360; Mitchell For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes v. Commonwealth, 195 Ky. 819, 243 S. W., ing the ladder which was to be used in de1028. [3-6] The instructions of which appellants complain seems to cover the whole law of the case. The court told the jury that if it believed from the evidence to the exclusion of a reasonable doubt that the appellants in Warren county, and within twelve months before the finding of the indictment, unlawfully had and kept in their possession an illicit moonshine still for the purposes of making intoxicating liquors for other than purposes allowed by law, to find them guilty and to fix their punishment within the limits prescribed by the statutes. The court also told the jury that aiders and abettors in misdemeanor cases are principals, and they should be so treated. In another instruction the court told the jury that the defendants could not be convicted upon the testimony of an accomplice or accomplices, unless such evidence be corroborated, and that the corroboration is not sufficient, if it merely show the offense committed and the circumstances thereof. The jury was also instructed it should find the defendants, or either of them, not guilty, if it had a reasonable doubt as to their guilt, or as to the guilt of either of them. This, it appears to us, is the whole law of the case, and we find no error in the instructions. [7] The third ground of complaint raises the question of whether there was sufficient evidence to submit the case to the jury. The still was located in a cave on the farm of Green Bros., in Warren county. A ladder was necessary in order to go down into the cave. In the cave was quite a large space. Water was available. When the officers searching for a still went to the cave, they found three of the appellants on the ground and arrested them. Part of them were members of the family of appellee William Green and resided at his house. As to the three found at the distillery, there can be no defense. The evidence was altogether sufficient. It is said, however, that the evidence against Will Green was not sufficient to carry the case to the jury and, if it amounted to a scintilla, was not sufficient to support the verdict. We cannot agree to that contention. The distillery was found upon his farm. The operators, or at least some of them were staying at his house. Some of them at least had supper and breakfast at his home the night before the arrest and left the next morning before daylight, or about that time, for the cave to operate the still. It was testified by some of the operators of the still that, while Will Green knew all about the still and its location and had advised about how it was to be operated, he did not have any interest in it; that all of them stayed at his house, and that he provided barrels to be used at the still; that on scending to the place of the still, and on the night before the arrest advised them to set the alarm clock for 3 a. m., so that they could get to the cave before daylight. The officers who made the arrest testified they were acquainted with Will Green's general reputation for dealing in intoxicating liquors, and that it was bad. The reputation of most of the others was also proven to be bad for the same thing. These facts, we think, were sufficient to carry the case to the jury and to support the verdict. There is no good reason assigned for the claim that a directed verdict should have been given as to any of the appellants. [8] The county attorney, in arguing the case, was guilty of misconduct in saying that "he [Will Green] ought to be fined after it had been shown that a still or parts of a still were found upon his premises, unless he came into court and proved to the satisfaction of the court that he was innocent and had no connection with or knowledge of the facts that a still was located on his lands." This statement was rather broad and general, and perhaps an enlargement upon the law, but we have frequently ruled that the fact an illicit still is found upon the lands of a defendant is evidence sufficient to carry the case to the jury, if there are no other circumstances which tend to disprove his connection with it. In many cases defendants are convicted upon slight evidence other than the fact that the distillery is found upon their premises. We conclude, therefore, that, while the statement was too broad, it was not so prejudicial as to warrant setting aside the judgment. [9] Appellant devotes much of his brief to a discussion of the power of the trial court to sentence the appellants to hard labor at the county jail in the absence of a verdict inflicting what is known as the working statute, and he cites and relies upon sections 1377 and 1136, Kentucky Statutes, and the case of Eldridge v. Commonwealth, 87 Ky. 365, 8 S. W. 892, 10 Ky. Law Rep. 176. Appellants correctly state the rule in ordinary misdemeanor cases, but by statute (Rash-Gullion Act [Acts 1922, c. 33]) the general rule has been changed; it being provided in the recent act that: "All persons who are convicted under this act, where a jail sentence is inflicted as part of the punishment, shall serve out the jail sentence at hard labor, and all fines and costs assessed against any person under this act, and not paid or replevied, shall be served out by confinement at hard labor at the rate of one day for each dollar of such fine and costs." Section 10. This statute, it appears to us, requires the court to enter judgment sentencing a defendant convicted under it to hard labor in every |