The 'agreement counted on in the third count of the complaint is supported by a letter written by the secretary of the Tallassee & Montgomery Railroad 'Co., the defendant, to Lutz, defendant’s traffic manager, and there is no variance between the agreement as laid in that count and the agreement supported by this evidence, nor is there other evidence in the case going to show a different agreement. That letter is as follows: “Montgomery, Ala., May 20 — 1897; Mr. R. E. Lutz, T. M., Dear Sir: — I.have agreed with Mr. Baxley to make a rate o'f $5 per oar for ties, Tallassee to Milstead. Car to contain not over 225 ties each. Mr. Baxley to load cars and to have weekly inspections and shipment's. This rate does not apply to piling unless it can be shown that same can make bridge curves safely without damage to this company’s property. Please have rate put into effect. This contract to apply to delivery of three hundred cars or over on or before 1st of July, 1898. Yours truly, (Signed) W. H. Micou, Secretary.” All the oral testimony adduced in the case on this point went in support of the agreement stated in this letter. The trial court was O'f the opinion that this agreement was unilateral and not mutual, that it did not import an obligation on Baxley, the plaintiff, to take, use and freight the cars which the. defendant thus undertook to supply at Tallassee for the transportation of railroad ties for the plaintiff to Milstead, and, hence, that the agreement on the part of defendant was without consideration and void; and upon this theory gave the affirmative *190charge for the 'defendant. We think this was error. The letter of Mieou to Lutz and other evidence in the case at least tended to show an agreement by Baxley to supply timber and load three hundred cars to be furnished him for that purpose at Tallassee for transportation by defendant thence to Milstead within a specified time, and that he would load cars, have inspection and make shipments weekly during the period named. There can in our opinion be no sort of doubt that had ¡the defendant 'supplied the-cars, and Baxley had failed to load them with ties for transportation and refused to pay the charges stipulated for transportation, he would -have violated his agreement and been answerable in damages to the railroad company for such breach. The obligation to load the cars and ¡to have' weekly inspections and shipments thus imposed on Baxley imparted mutuality to the contract and supplied a valuable consideration for the undertaking of s the defendant. In the view we thus take of the case it is wholly unlike that of The Chicago & Great Eastern R’y Co. v. Dane, 43 N. Y. 240, relied on for appellee. In that case there was no obligation assumed by the party -having shipments to be made to make them by the defendant company, but only an agreement to carry freights for the plaintiff at a specified rate if the latter should elect to make the contemplated shipments, and it 'was properly held that the undertaking of defendant was without consideration, unilateral and void.
If upon another trial there should be averment in the complaint and evidence tending to prove that at the time ¡the contract between plaintiff and defendant was entered into the defendant had notice that th contract in evidence between this plaintiff and the Western Railway Company was in existence, or knew at that time that such contract was in contemplation and before default in supplying cars had notice that the contemplated contract had been made between plaintiff and the Western Railway Company, and that it, the defendant, had notice that the timbers it agreed to transport for plaintiff were to be delivered to the *191Western Railway Company in the performance of the latter company’s said contract .with plaintiff, then under this state of averment and evidence the measure of plaintiff’s damages would be the profit he would have made by carrying out his contract with the Western Railway Company had he not been prevented from carrying it out by defendant’s failure to transport ¡the timbers for him in accordance with the contract sued on; and to show such damages he should be allowed to prove 'the difference between the costs of getting opt and delivering the timbers including five dollars per car for transportation and the price he was to receive from the said railway company. The special circumstances which we have hypothesized taken in connection with notice to defendant of them take the case out of the general rule of damages obtaining in cases of failure by common carriers to carry and deliver, and bring it within the special rule formulated above, on the theory that such damages were within the contemplation of the parties. — Vicksburg Railroad Co. v. Ragsdale, 46 Miss. 458; Fort Worth & Denver City R’y Co. v. Greathouse, 82 Texas, 104; Central Trust Co. v. S. & W. R. R. Co., 69 Fed. Rep. 683; Gray v. St. L. I. M. & S. R’y Co., 54 Mo. App. 666; Simpson v. L. & N. W. R’y Co., L. R. 1 Q. B. Div. 274; Jameson v. Midland R’y Co., 50 L. T. (N. S.) 426; Hamilton v. W. N. C. R. R. Co., 96 N. C. 398; Mo. Pac. R’y Co. v Nevin, 31 Kan. 385; Daughtery v. Amercan Union Telegraph Co., 75 Ala. 168. Indeed the rule of admeasurement of damages under the circumstances stated is the same as upon a contract by which the plaintiff has undertaken to sell and deliver the property to the defendant at a stipulated price and has been prevented from performance by the wrong of the defendant: Profits plaintiff would have made had he been permitted to carry out the contract being the measure in either case. — Bonifay v. Hassell, 100 Ala. 296; Griffin v. Ogletree, 114 Ala. 343; Watson v. Kirby, 112 Ala. 436.
It was immaterial whether the defendant had or owned any cars at the date of or during the time cov*192ered by tire contract.’ If the jury should' find that it contracted to supply cars, it was the company’s duty to procure them.
It was also beyond the issues in this case whether plaintiff “had to turn over his contract with the Western Railway Company to Vandiver & Co. to pay them what he owed them.”
Reversed and remanded.