McCown-clark Co. v. Muldrow

The opinion,of the Court was delivered by Mr. Justice Fraser. The facts in this case involved in this appeal are as follows: The plaintiff sold and delivered to the defendant a quantity of fertilizers. The fertilizers were to have been delivered in March for immediate use. The fertilizers were not delivered until June. The defendant, by answer, set up the failure to deliver in the contract time and damages caused by the delay. The defendant offered to show the difference between the crops, made on adjoining land of similar quality, worked in the same way and with the same seasons, on which the fertilizers were used in March, and the yield on his land on which the delayed fertilizers were used. The trial Judge excluded the testimony on the ground that the measure of damages was the difference between the contract price and the price at the time of delivery-specified in the contract. 1, 2 I. To this ruling exception was taken. The general rule is beyond question, but it does not apply to' this case. ' It is well settled that when the reason of the rule fails the rule does not apply. One who suffers injury from the violation of his contract must minimize his loss by going into the iriarket and purchasing other goods to supply his needs. When, however, the season has passed and in *56 jured party to the contract cannot procure the needed goods, the reason of the rule does not apply, and the rule is not applicable. The allegation is that the defendant could not procure the fertilizer when needed, and he could not minimize his loss. The testimony offered eliminated the uncertainty usual in such cases, and should have been admitted. The exception that raises this question is sustained. 3 II. The second question is as to the allowance of interest on the account. The record does not show that this question was raised in the trial Court, and it cannot be considered. The judgment is reversed and a new trial ordered. Mr. Chief Justice Gary and Mr. Justice Watts, concur.