| Mich. | Dec 12, 1899
(after stating the facts). 1. What is the measure of damages ? This is the principal question. Defendant contends that the rule of damages is the money paid out for the trees, the cost of setting out and caring for them up to the time of the suit, and the use of the land which they were occupying. The court instructed the jury that the measure of damages was the value that would have been added to the premises if the trees had been of the varieties ordered. We think the court announced the correct rule. “The primary purpose of awarding damages is actual compensation to the party injured, whether by a tort or by breach of a contract.” 8 Am. & Eng. Enc. Law (2d Ed.), 546, and note 2. In U. S. v. Taylor, 35 F. 484" court="U.S. Cir. Ct." date_filed="1888-06-23" href="https://app.midpage.ai/document/united-states-v-taylor-8126731?utm_source=webapp" opinion_id="8126731">35 Fed. 484, it was held that:
“In an action for damages in cutting growing timber or trees, the recovery is not limited to their actual value for firewood, turpentine purposes, or for timber or lumber purposes, but the actual injury to the estate by the cutting of the trees; and in determining the question it is proper to show the purpose for which the trees were designed and could have been used.” '
In Stoner v. Railway Co., 45 La. Ann. 115" court="La." date_filed="1893-01-15" href="https://app.midpage.ai/document/stoner-v-texas--pacific-railway-co-7195664?utm_source=webapp" opinion_id="7195664">45 La. Ann. 115, it was held that the measure of damages for the destruction of
Counsel for defendant cites White v. Miller, 71 N.Y. 118" court="NY" date_filed="1877-11-13" href="https://app.midpage.ai/document/white-v--miller-3605643?utm_source=webapp" opinion_id="3605643">71 N. Y. 118 (27 Am. Rep. 13). In this case cabbage seed was sold, warranted to be genuine Bristol cabbage seed. The seed was not as warranted. It was held that the proper measure of damages was the difference in value between the crop raised from the defective seed and a crop of Bristol cabbage such as would ordinarily have been produced that year. Other cases of this character are cited. Where crops are raised from seeds, and mature in a few months, and the value of the land is not affected thereby, no other rule of damages can obtain. It is different, however, where fruit trees are planted, which will not mature for years, which become a part of the realty, and materially add to its value. The destruction of a crop of cabbage, corn, wheat, or other annuals does not injure the land, and consequently there can be but one rule of* damages. The most of the cases cited by the defendant are cases of this character. The other cases cited involve the question of speculative damages, which is not involved in this case. It is a matter of common knowledge that lands are enhanced in value by orchards of fruit trees. They
2. Error is assigned upon the rejection of testimony as to the condition of the trees immediately before the trial, and after the severe winter of 1898-99. The object was to show that the trees, or many of them, had been injured or killed by the severe cold weather after this suit was. brought, and to claim that plaintiff had, therefore, suffered no damage by the failure of the defendant to keep his contract. The ruling of the court was correct. The law does not permit the defendant to avoid his contract because the trees were injured or destroyed by circumstances beyond the control of the parties. The rights of the parties were to be determined by the situation of affairs at the commencement of the suit. If, by the act of God afterwards,' the trees were destroyed, this fact furnished no defense. If they had been valuable trees, and had been injured, through the neglect of the plaintiff, the rule would be different.
Judgment affirmed.