127 N.C. 230 | N.C. | 1900
This action was brought by the plaintiff to recover damages of defendant on account of a breach of warranty, the form of the action being that formerly known as “case.” The plaintiff bought of the defendant a quantity of rice, which he alleged the defendant represented to be good seed rice, but which was in fact not good seed rice, and which failed to sprout after having been planted,
The appeal, however, brings with it the question of the correctness of the submitting by his Honor of the second sub-division of the third issue; of his receiving the testimony of witnesses as to the price of rice in the fall of the year 1898, the time when the anticipated crop would have matured ; and as to the average yield of rice on such land as the plaintiff’s and as the plaintiff had prepared; and of his instruction to the jury on the second sub-division of the third
The plaintiff did not appeal from the judgment, and, ordinarily, we would have the judgment below reformed, striking out the amount allowed for the loss of the crop, and allowing it to stand for the amount found to be due by the jury under the first sub-division of the third issue ;but, as we think,under all the circumstances of the case, the plaintiff is probably entitled, under a correct rule of estimating the damage he has sustained, to a larger recovery than for the amount expended by him in the preparation and planting of the land, and the value of the rice, we think it but just to him to declare error in the instruction, and send the case back, that it may be tried anew. We think the true rule for the measure of the plaintiff’s damage in this case is the amount which he paid the defendant for the rice, the amount which he expended in the preparation of the soil for the crop and for the planting or sowing of the seed, and because it was too late to plant another crop of rice he ought also to recover a reasonable rent for the land — the 47 acres — for the year 1898, subject to be reduced, however, by such amount as the defendant may be able to show that the plaintiff could have rented the the land for, after it was too late to plant or sow rice, to be' put in other crops than rice. The costs of this appeal to be taxed against the plaintiff.
Error.