| Kan. | Jan 15, 1874
Defendant in error recovered a judgment in the district court of Crawford county for damages, for breach of a contract to cut, bind and stack certain oats. This judgment plaintiffs in error now seek to reverse. The testimony is not preserved, and but a single question is presented, and that upon the refusal of an instruction as to the measure of damages. Plaintiffs in error asked the court to charge that the measure of damages was the difference between the contract price and what it would have cost to have gotten the same work done by other parties. This the court refused, and charged that the plaintiff was entitled to recover such damages as he actually sustained by reason of the failure, provided he did what he could to protect himself from loss — that if he, relying upon the contract with the defendant, made no other provision for cutting the grain, and did not become aware that defendants would fail in their contract until it became so late that he could not get these oats harvested by others until they were ripened and destroyed, he was entitled to recover the value of the oats so lost and destroyed, as they stood in the field. While the instruction refused states what perhaps would be the ordinary rule for the measure of damages, still we think that given states the rule as applicable to some cases. If the plaintiff, after using all reasonable precautions lost his crop by reason solely of the failure of defendants to perform their contract, he was clearly- entitled to recover the amount of such loss; and to that extent the instruction goes, and no further. We must presume that the evidence, it not being before us, warranted the instruction. The petition clearly does, for it alleges specifically that by reason of the breach the oats were entirely destroyed and lost to the plaintiff.
The judgment will be affirmed.