The only exception presented for our review is to the charge given by the Circuit Court at the request of the defendant in relation to his counter-claim urged by way of set-off and recoupment to the action of the plaintiffs.
That this charge is correct, and announces principles of law appropriate to the case presented by the evidence is clear, unless the one objection urged to it in argument can be sustained.' — Bell v. Reynolds & Lee, 78 Ala. 511; s. c., 56 Am. Rep. 52; Griffin v. Colver, 16 N. Y. 489; s. c., 69 Am. Dec. 718; note, p. 724.
The criticism on the charge is, that it ignores that portion of the evidence which tends to prove that the plaintiff’s contract to deliver the defendant the twenty tons of fertilizer had been discharged by the delivery, of the full quantity to the purchaser, and that the second obligation incurred to deliver ten and a half tons, based on the plaintiff’s alleged conversion of this quantity of the twenty tons said to have been delivered, imposed new relations on the contracting parties entirely different from those growing out of the original agreement. The contention is that this new agreement excluded by implication any liability for the profits which defendant would probably have realized from using the fertilizer upon the land, which he had prepared for its use, in the cultivation of cotton. We held, when the case was last before us on appeal, that under the contract of the plaintiffs to deliver the twenty tons, with notice that it was intended for use on the defendant’s cotton crop, to be grown on his plantation in Barbour county, the defendant could recover, by way of set-off, or recoupment under the provisions of the statute (Code, 1886, § 2683), the profits which he would have realized but for the plaintiffs’ default in delivering the eleven and a half tons in controversy. The special facts brought to the knowledge of the plaintiffs were held sufficient to bring the damages claimed for such lost profits within the legal contemplation of the contracting parties, and such damages were held to be neither remote, nor uncertain, but to be proximate and capable of accurate ascertainment. — Bell v. Reynolds, 78 Ala. 511, 517.
We do not concur in the interpretation put on the evidence by the appellants’ counsel, nor in the inferences which he seeks to deduce from it, Admitting, as contended, that the *499plaintiffs, after delivering the full amount of the fertilizer agreed to be delivered by them to the defendant, converted to their use eleven and a half tons of it, nevertheless the evidence tends to show that they promised to replace it in time for the defendant to use it on his cotton crop that year. This was precisely the original obligation incurred by them as to this particular portion of the goods sold. It had reference to the same crop, the same uses, and the same land originally within the contemplation of the parties. The same damages flowed from the default, and were, therefore, in like manner recoverable by way of set-off or recoupment, as if no new contract had been made. Nor, in this aspect of the case, is the charge objected to so misleading as to be erroneous, as it could not, in our opinion, have worked any prejudice to the plaintiffs. The case, in our judgment, remains unchanged by this new phase of the evidence, and the judgment must be affirmed.