49 So. 258 | Miss. | 1909
delivered the opinion of the court.
This was a suit in assumpsit to recover damages alleged to have been sustained by appellants, plaintiffs in the court below, by reason of the failure of appellee to deliver to appellant two hundred bales of cotton purchased by appellant from appellee for December delivery, O. O. D., Iuka, by two contracts — one of date October 30, and one of date November 28, 1907. After proving the contracts and their breach, appellants, in order to show the amount of their damage, offered to introduce in evidence invoices received by them from various parties, showing the number of bales, weight, and price of the cotton which appellants claimed to have purchased from such parties, at various places and various times between the 14th and 25th of January,
Appellants’ contention is that it is shown by the evidence that, at the time of the making of the contracts sued on, they were engaged in the business of buying and selling cotton, and, with the knowledge of appellee, purchased this cotton for resale; that this cotton was in fact resold by appellants, and, upon their failure to receive same, it became necessary for them to purchase other cotton with which to1 fill their own contracts, which purchase they proceeded to make as quickly as possible after the 31st day of December, the last day for the delivery of the cotton under the contract sued on; that on these facts “the measure of damages is what it cost appellants to fulfill their contract after the appellee had failed to fulfill its contract.”
It is a sufficient answer to this contention to say that appellants have not, by their declaration, submitted such a case to the judgment of the court. The declaration simply alleges the making of the contracts, their breach, and that appellants were damaged thereby in a certain sum. It contains no allegations whatever of any circumstances surrounding the parties, or of any special matter, which would warrant the recovery of special damages. Proof of such circumstances, or special matter, therefore, was wholly immaterial, and could not change the measure of damages fixed by the declaration. Material allegations are essential to the relevancy of evidence, and, except in eases where this defect is cured by verdict, to prove without allegations is vain and fruitless. Hughes on Procedure, pp. 58, 1116.
The measure of plaintiffs’ damages is the difference between the contract price and the market value of the cotton at the time and place of delivery. These invoices, therefore, were properly excluded. Mobile, etc., R. Co. v. Robbins Cotton Co., 94 Miss. 351, 48 South. 231.
We find no reversible error „in the other matters complained of. Therefore the judgment is affirmed.