86 S.E. 611 | N.C. | 1915
After stating the case: There are substantially but two questions presented on this appeal.
First. It was necessary for plaintiff to prove his damages by testimony as to the value of the timber which, by the wrongful conduct of the defendant, he was prevented from cutting on the land, under their contract, and in order to do so, among other pertinent evidence, he offered to show at what price lumber was selling in that market, and was permitted to do so over defendant's objection. We do not see why this was not competent and relevant. It tended to prove the value of the timber, and the certain profit he would have made if the defendant had not violated the contract. The ground of objection to this evidence, as stated in the brief, is that plaintiff should have been restricted to the market price and not allowed to speak of any particular sale or purchase by him at the time. But the market price is generally ascertained by prices received at collective sales in the ordinary course of business, and what was paid for the article in a sale is some evidence of value. It was held in Small v. Pool,
The right to recover damages of a prospective nature in cases of this kind, and the limitations upon it, are discussed fully by Justice Hoke inWilkinson v. Dunbar,
But defendant further urges that the plaintiff should have diminished the loss by the exercise of proper care after he was apprised of the breach by the defendant of the contract, and should have bought other lumber or timber for his purpose. This is a familiar doctrine, but there is some variety in the statement of it. Compensation for a wrong is limited to such consequences as the injured party could not have avoided by reasonable care or diligence. All other consequences are regarded as remote, the rule being the same in case of contract and those of tort. The injured party's own negligence or willful fault in failing to take reasonable precautions to prevent or reduce the damage, after notice of defendant's wrong, is regarded as the proximate cause of such injuries as could have in this way been avoided.
Courts frequently speak of the duty to make the damages as light as possible, but it is a duty only in the sense that compensation is denied for losses which might have been prevented by careful conduct on his part, and they are, therefore, said to be remote because the will or negligence of the injured party has intervened as a separate and independent cause producing them. Hale on Damages, p. 64 (29), and cases in note 86; Loker v.Damon, 17 Pick. (Mass.), 284; Sutherland v. *743 Wyer,
If the party injured has it in his power to take measures by which his loss may be less aggravated, this will be expected of him. Thus, in a contract of assurance, where the assured may be entitled (657) to recover for a total loss, he, or the master employed by him, becomes the agent of the assurer to save and turn to the best account such of the property assured as can be preserved. The purchaser of perishable goods at auction fails to complete his contract. What shall be done? Shall the auctioneer leave the goods to perish, and throw the whole loss on the purchaser? That would be to aggravate it unreasonably and unnecessarily. It is his duty to sell them a second time, and, if they bring less, he may recover the difference, with commissions and other expenses of resale, from the first purchaser. If the party entitled to the benefit of a contract can protect himself from a loss arising from a breach, at a trifling expense or with reasonable exertions, he fails in social duty if he omits to do so, regardless of the increased amount of damages for which he may intend to hold the other contracting party liable.Qui non prohibet, cum prohibere possit, jubet. And he who has it in his power to prevent an injury to his neighbor and does not exercise it is often, in a moral if not in a legal point of view, accountable for it. The law will not permit him to throw a loss resulting from a damage to himself upon another, arising from causes for which the latter may be responsible, but which the party sustaining the damage by common prudence could have prevented. For example, a party contracts for a quantity of bricks to build a house, to be delivered at a given time, and engages masons and carpenters to go on with the work. The bricks are not delivered. If other bricks of an equal quality, and for the stipulated price, can be at once purchased on the spot, it would be unreasonable, by neglecting to make the purchase, to claim and receive of the delinquent party damages for the workmen left unemployed and the amount of rent which might be obtained for the house if it had been built. The party who is not chargeable with a violation of his contract should do the best he can in such cases; and, for any unavoidable loss occasioned by the failure of the other, he is justly entitled to a liberal and complete indemnity. The doctrine, as thus formulated, with the reasons for it, and hypothetical cases showing its practical application, will be found in an able opinion by Judge Weston in Miller v. Mariners'Church,
We do not think, though, that in this case defendant has properly shown what the answers of the witnesses to the question he propounded would have been. Their answers, if they had been given, might have been very disappointing and to such an extent as to be most unfavorable to the defendant, instead of helping out his defense. It has been often held that in such a case there will be no reversal, as we are unable to see that the proof would have been made if the question had been admitted, or that there was any prejudice to appellant by reason of the adverse ruling. Wallace v.Barlow,
The charge of Judge Daniels was very fair to both parties and, as we view it, was entirely free from any fault. The verdict was not at all immoderate.
No error.
Cited: S. c.,
