ON MOTION ROE REHEARING.
The plaintiff in error makes the point that the court in its decision in this ease overlooked the fact that the suit was predicated upon four notes of the defendants, the execution of which was admitted by them, and overlooked the fact that the only plea filed by them was one of recoupment for damages on account of the failure of the plaintiff to furnish certain nitrate of soda. We have heretofore alluded to various defects in the trial and to the failure of either party to make timely objections to matters which might have been correctly adjudicated at the trial if the attention of the trial judge had been called to them, or if he had not been authorized to treat them as waived by the parties. However, the court did not overlook either the nature of the suit or the plea. In the state of the record it was apparent that objections which could have been urged to some of the testimony were not presented, and the effort of this court was to mould such a judgment aS would accord substantial justice in conformity with the rules of law, and without 'doing violence to any of the rules of pleading. It seems to us, however, to be perfectly plain that while this plea is one of recoupment, under the testimony of the defendants, which was not objected to, the substitute received from the plaintiff (which is the basis of the note of June 18) was perfectly .worthless, and the jury were authorized to find that the defendants were entitled to recoup, under the plea filed, as an element of damage consequent upon the breach of the contract of the plaintiff to furnish nitrate of soda,- the purchase-price of this worthless top-dressing, furnished at the plaintiff’s own instance, according to the testimony, in the endeavor to avoid the consequence of the breach of the con*377tract and to adjust the matter to the satisfaction of its customers, the defendants. If Bragg & Co. had purchased this top-dressing from some other concern, and upon a test it had been proven to be worthless, can it be contended that' they would not be permitted to recoup, on a plea filed, the amount they expended in endeavoring to diminish the damage consequent upon the breach of the contract? What matters it (in fact we think it-rather strengthens the defendants’ contentions) that this top-dressing was purchased from the plaintiff rather than from a third person ? The defendants claim that by the plaintiff’s failure to furnish the nitrate of soda they were damaged in the sum of $3,880. This was their cause of action. They alleged, it is true, that the breach of the contract resulted in the diminution of their crop, but the cause of action was the injury consequent upon the breach. Doubtless, upon timely objection to the evidence, the court would have confined them to damages in the precise particular detailed in the plea of recoupment. But, if the evidence submitted authorized the jury to find that the top-dressing was worthless, and that its purchase-price was represented by the note of June 18, then no matter in whose hands the evidence of, this debt might be, the note was without consideration; and had this evidence been objected to as not pertinent to the plea, can it be contended that the defendants could not at once have amended the plea so as to conform to this evidence; or can it be for a moment supposed that such an amendment would have been objectionable upon the ground that it was not germane to .the plea of recoupment? The defendants’ cross-action was a plea of recoupment, predicated upon the alleged fact that upon the plaintiff’s breach of the contract to furnish nitrate of soda, the defendants were injured with reference to the transaction specifically identified. In the course of the trial an amendment to the plea would technically have been proper. It appears that the plaintiff’s counsel waived the formality by acquiescence in the admission of evidence which would have been perfectly pertinent to the amendment if it had been made. Objection to the amendment would have been futile; and certainly when the formality is waived, it can not afford the party waiving it good ground for setting aside the verdict of a jury, in order to have the same evidence in another trial more formally submitted.
The same ruling will apply to the contention of the counsel for *378plaintiff m error as to the abatement allowed for the advance in price of the nitrate of soda. The defendants’ cause of action is set forth in the plea for damages consequent upon the breach of the contract in regard to the nitrate of soda above referred to. By proper amendment they could have alleged, as one element of damage, that (even if they had not intended to use the nitrate of soda on their own farm) they would have been able to sell the nitrate of soda at the advanced price, -and that under the contract they were entitled to a profit of $7 a ton. As to this point, the plaintiff relieved the defendants of making the formal amendment, by waiving it and acquiescing in the admission of testimony which would properly have supported the amendment if it had been offered. In fact, in the defendants’ original plea there is an allegation of then-loss as to this item, though there is no definite request for recovery upon that specific ground, and, so far as this particular paragraph is concerned, it would have only been necessary to add the request.
After a very careful and painstaking examination of this record on the original hearing, we are at a loss to see any semblance of a reason why the rehearing should be granted. Rehearing denied.