Herring v. . Armwood , 130 N.C. 177 ( 1902 )

The sole question involved in this appeal, when stripped of its technical paraphernalia, is whether an action for damages will lie for a breach of contract in failing to furnish fertilizers, whereby the yield of the crop was decreased, because such damage or failure in the yield would be too remote.

His Honor held in the negative, which, we think, was error. The rule, as stated in Hadley v. Baxendale, 9 Exch., on page 353, is as follows:

"Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive, in respect of such breach of contract, should be such as may fairly and reasonably be considered either arising naturally, that is, according to (181) the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it."

This rule is substantially repeated, but more succinctly, by Pearson,J., in Ashe v. DeRosset, 50 N.C. on page 301, 72 Am. Dec., 552, which is quoted verbatim in Spencer v. Hamilton, 113 N.C. on page 50, 37 Am. St., 611.

Recognizing the fact that the yield of crops is increased by the use of fertilizers, and applying this rule to the case at bar, the conclusion is irresistible that a lessening in the yield would be the natural result of a failure to use the marl, if marl be beneficial to the growth and development of the crops, and that the lessened yield would be incidental to such breach, and, therefore, plaintiff would be liable.

It is common knowledge that the use of manure, manipulated fertilizers and compost increase the yield of cotton, corn, peanuts, etc., and in some sections are considered absolutely necessary for the production of a profitable yield. It is likewise well known that the use of marl in some sections of the State greatly increases the production. And it appears from the contract set up by defendant and admitted by plaintiff, that he, the plaintiff, in renting the farm, agreed to dig two thousand bushels of marl to be hauled and scattered upon the land; and by his failure to do so, it is alleged that the yield was greatly lessened. And it seems to have been within the contemplation of both parties that the use of the marl would be beneficial in raising the crops; and, if so, then the failure to use it would necessarily lessen the yield, which would be the direct result of the breach of contract in not furnishing it. How much that net additional yield, if any, would have been according to the usual and natural course of things, was a question of fact to be found by the jury; and by the (182) "net additional yield" we mean its value after deducting its necessary expenses in harvesting, etc., as is held in Spencer v. Hamilton,supra. In the case last cited our Court held that the tenant could plead, as a counterclaim for damages, a breach of contract upon the part of the landlord in not draining the land as he had agreed to do, thereby decreasing the yield, in an action brought to recover the rent. So, it must necessarily follow that if damages be recoverable for a breach of contract which decreased the yield, they can also be recovered for a breach of contract whereby the yield was not increased. It requires the same time, labor and expense in preparing the land, and in plowing and hoeing crops upon thin and unimproved land as it does upon well-improved, manured and fertilized land; and we know that the products of the former are less than those of the latter, according to the usual and natural order of events.

The defendant had a right to have the issues tendered by him submitted to the jury; and if he could sustain them by proper proof, he would be entitled to recover such amount of damages as he might show had been done him by reason of the breach of the contract. For the error above pointed out a new trial will be awarded.

New trial.

Cited: Williams v. Tel. Co., 136 N.C. 84; Owen v. Meroney, ibid., 478;Seawell v. Person, 160 N.C. 294; Ober v. Katzenstein, ibid., 441;Tomlinson v. Morgan, 166 N.C. 561; Guano Co. v. Live Stock Co.,168 N.C. 451; Carter v. McGill, ibid., 510; Perry v. Kime, 169 N.C. 541.

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