(аfter stating the facts). Defendants ask for a reversal of the judgment because the court erred in the admissiоn of evidence as to the plaintiff’s damages and because the court adopted the wrong theоry as to the measure of damages. The particular instruction complained of ds instruction numbered 3, which reads as follows:
“If you should find that defendants sold plaintiff Klondyke strawberry plants, but delivered some other kind you should find fоr plaintiff. If lands set in these plants so bought and delivered were less valuable as a strawberry investment than if set tо Klondyke plants, you should find for plaintiff the amount of such difference, considering the ordinary productive lifеtime of the strawberry plant.”
This instruction must be construed with reference to the testimony upon which it was predicated, and, when so considered, it was erroneous and prejudicial to the rights of the defendant. It will be notеd from the abstract of the testimony that the court tried the case on the theory that the measure of damages was the difference in value of the lease had it been set out in Klondyke plants, and what it was set out in the kind of plants actually grown on it. This was erroneous. It is true the measure of damages for the injury or destructiоn of trees on land is the difference in the market value of the land immediately before and immediately after the destruction of the trees. St. Louis, I. M. & S. Ry. Co. v. Ayres,
In the case of the Railway Company v. Jones,
“The damage to a meadow destroyed by fire is measured by the cost of rеseeding it and its rental value from the time of its destruction until it is restored.”
As we have already seen, strawberries аre not like cotton and com, which are planted, grown and harvested annually, nor are they like orchards, which are required to be set out and cultivated for several years before they bear fruit and which with proper care and cultivation last for a great number of years. Strawberry plants become productive the second year after they are set out and are only profitable commercially fоr a few years.
The evidence on the part of the plaintiff tended to show that it could not he ascertained that the plants set out were not of the Klondyke variety until after they bore fruit. Therefore, in the application of the principles above announced, we hold that the measure of damages in thе instant case is the difference between the value of the crop of strawberries of the kind that was рroduced during the season of 1911 and the crop which would have been produced under ordinary circumstances if the plants had been Klondyke plants as represented, together with the cost of resetting the рlants, the cost of recultivating and the cost of the new plants, the plaintiff having already paid for the plants which he set out. The testimony shows that the first year the plants are set out they require cultivation hut are nоt productive, and for this reason the plaintiff is entitled to the cost of recultivation, as stated above. See Depew v. Peck Hdw. Co.,
It follows, therefore, that for the errors in giving-instruction numbered 3, quoted above, and in admitting improper evidence on the measure of damages, the judgment will he reversed, and the cause remanded for a new trial.