This is an action upon a note, from the defendants to the plaintiff, dated June 15, 1921, for $1,304.28, payable October 15, 1921, with interest from maturity at 8 per cent. per annum with 10 per cent. attorney's fees. *Page 436
The complaint is in the usual form. The answer admits the execution of the note sued upon. It contains allegationsby way of defense, hereinafter referred to. These allegations are not formally set up as a counterclaim, as they should have been, but, as the plaintiff replied thereto as a counterclaim, they will be considered as such.
The counterclaim amount to this: That on March 8, 1921, the defendants entered into a written contract with the plaintiff for the purchase of 57 tons of fertilizer, 45 tons to be delivered at Cash, S.C. and 12 tons at Laurens, S.C. which shipments were to be made at once; that the contract was confirmed by the plaintiff on March 8th, but that the shipments were not delivered until April 15th, notwithstanding repeated demands for immediate shipments in the meantime; that the delay in the shipments caused a delay of several weeks in planting, resulting in late maturing of the cotton and damage by boll weevil and drought, reducing the yield to the extent in value of $2,450, for which they demanded judgment less the amount of the note.
The evidence showed: That on March 8, 1921, a contract was signed up by the defendants and by one McManus, salesman of the plaintiff, for the purchase and sale of the fertilizer, at prices named, for shipment to Cash, S.C. "on or before March 25, 1921," subject to confirmation by the plaintiff at its office in Charlotte, N.C., that it was so confirmed on March 10th; that on April 2d the defendant, J.D. Sullivan, wired the plaintiff's Charlotte office: "Ship fertilizer at once," and on April 5th, the same thing; that the plaintiff replied by wire that day: "Your fertilizer will be shipped at once"; that the shipments were made on April 6th, and were delivered at Laurens on the 9th and at Cash's on the 12th; that no objection was made by the defendants to the delayed shipments, but they were received and used; there was no evidence that the defendants endeavored to obtain fertilizer elsewhere or that they were unable to do so; that on June 15th, the defendants executed the note in suit *Page 437 for the purchase price of the fertilizer. Note: It is impossible, from the evidence in the case, to reconcile the amount of the note, $1,304.28, with the cost of the fertilizer according to the quantity and price named in the contract:
45 tons at $32.25 ............................. $ 1,451.25
12 tons at $39.75 ............................. 477.00
__________
Total ................................... $ 1,928.25
Whether the difference was made up in cash or in another note does not appear. It does appear that 45 tons were delivered at Cash, S.C. and 12 tons at Laurens; that on June 18th the defendants executed a crop mortgage to secure the $1,304.28 note; that the defendants sustained a serious loss by reason of the delay in the shipment of the fertilizer, as alleged in their answer.
At the conclusion of the evidence counsel for the plaintiff moved for a directed verdict in its favor upon the grounds:
"1. That the note upon which the action is based was executed by the defendants on June 15th, 1921, and that they thereby waived the claim of damages by reason of the failure of the plaintiff to ship on or before March 25th;
"2. That the damages set up by the defendants in their answer are special damages, and there are no allegations in the answer nor is there any evidence of notice to plaintiff at the time of the execution of the contract of circumstances from which special damages might be reasonably expected to arise in case of delay in shipment."
His Honor, the presiding Judge, overruled the first ground, and sustained the motion upon the second, saying:
"The damages alleged in the answer here are special damages. And it is the law that where in an action damages are sought to be recovered for breach of contract and such damages are special, it is necessary for the party or parties claiming such special damages to allege and prove that the other party had notice at the time of the making of the contract, of the special circumstances from which such damages might *Page 438 reasonably be expected to result. The answer in this case contains no allegation that there is any evidence that Swift Company knew, when the contract was made, of any special use which plaintiff intended to make of the fertilizer, or of any scarcity of fertilizers which would prevent defendants from buying what they needed from other dealers, if plaintiff failed to furnish it."
The plaintiff has not given notice that it would ask that the order be affirmed upon the additional ground that the motion should have been sustained upon the first ground which was overruled. That issue is therefore not before this Court. The sole question is whether the order can be sustained upon the second ground.
For the reasons stated in my dissenting opinion in the case of McCown-Clark Co. v. Muldrow, 116 S.C. 54,106 S.E., 771, which need not be here repeated, I think that the Circuit Judge was entirely right in directing a verdict for the plaintiff. The majority opinion in that case is not only inconsistent with my conclusions in the case at bar, but, as I view it, is distinctly in support of them. It is there said:
"One who suffers injury from the violation of his contract must minimize his loss by going into the market and purchasing other goods to supply his needs. When, however,the season has passed and [the] injured party to the contractcannot procure the needed goods, the reason of the rule does not apply, and the rule is not applicable. The allegation is that the defendant could not procure the fertilizerwhen needed, and he could not minimize his loss. The testimony offered eliminated the uncertainty usual in such cases, and should have been admitted." (Italics added.)
In the present case there was no such allegation and no such proof. The Court will take judicial notice of the fact that the season for planting cotton has not passed on April 12th; and the fact that the defendant accepted delivery on April 9th and April 12th adds support to that conclusion. There was no evidence of an effort even to procure fertilizer *Page 439 elsewhere after March 25th, and certainly none that it could not have been procured which appears to be the basis of theMcCown case.