Plaintiff's replication sets up an alteration in the terms of the contract of sale which is a departure from the complaint, rendering it demurrable on that ground. If the original contract was altered by a contractual agreement between the parties which affected their obligations thereunder, that alteration should have been averred in the complaint, or should have been supplied by amendment. It could not be supplied by replication. Gates v. O'Gara, 145 Ala. 665, 39 So. 729; Ala. Grocery Co. v. Bank, 158 Ala. 143, 48 So. 340, 132 Am. St. Rep. 18.
The contract, as here sued on, was executory. Where the purchaser of goods under such a contract wrongfully refuses to accept them, or to perform some duty preliminary to their delivery and acceptance, the measure of the seller's damages is not the contract price, but the difference between the contract price — less the cost of delivery, if unincurred — and the market price or selling value at the time and place of the default, or at the nearest available market. Wheeler v. Cleveland, 170 Ala. 426, 54 So. 277; Hopkinsville Milling Co. v. Gwin, 179 Ala. 472, 60 So. 270; Gate City, etc., Mills v. Rosenau, etc., Mills, 159 Ala. 414, 49 So. 228; Curjel v. Hallett Mfg. Co., 198 Ala. 609, 73 So. 938.
In the absence of evidence furnishing the data for such a computation, the trial court could not properly render judgment for more than nominal damages. Wheeler v. Cleveland, supra; Curjel v. Hallett Mfg. Co., supra. The judgment for substantial damages was therefore erroneous. Other questions need not be considered.
For the errors noted the judgment will be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur. *Page 522