after making the foregoing statement, delivered the following opinion of the court:
The questions presented by the assignments of error will be disposed of in their order as stated below.
1. Did the trial court commit reversible error in *145admitting the testimony for the defendant, oyer the objection of the plaintiff, which is referred to in the statement preceding this opinion?
The question must be answered in the affirmative.
The order given by the defendant contains the contract requirement as to the quality of the Red Dog ordered, and, as applied to the evidence in the case, the contract specified merely that the Red Dog ordered was “something (of) the same analysis,” as the “Daisy, Adrian, Arlington Flour, or Comet,” brands of Red Dog, or better, with respect to nutritive food value. The evidence should have been confined to the question whether the Red Dog tendered by the plaintiff did or did not possess the quality specified in the order. The aforesaid evidence for the defendant, admitted over the objection of the plaintiff, allowed the defense that the defendant was justified in nonacceptance of the goods, although the Red Dog tendered was shown by the uncontroverted evidence to have strictly complied with the contract requirements, merely because it possessed other qualities, objected to by the defendant after the contract was made and which were not mentioned in the contract. This was, in effect, to allow the defendant to set up in his defense a different contract from that made with the plaintiff, on which the action was brought. This was error, and plainly error which was prejudicial to the plaintiff’s right. It was therefore reversible error.
2. Did the court err in giving instruction No. 1 (set out above)?
The instruction is misleading in its statement, in substance, that the defendant ordered only certain brands of Red Dog. As applicable to the evidence in the case, the defendant did not order any brand of Red Dog, ex-*146•eept in the alternative, and in fact ordered merely ■something of a certain nutritive food value specified in the order. Further, the instruction required the jury to find from the evidence that the Red Dog tendered was of “equal value as a feed,” not limiting that value to nutritive food value, which the contract plainly did; dhus permitting the jury to erroneously consider, as bearing on the “food value,” other qualities outside of •the provisions of the contract — such as color, the price .at which it sold, the preference of the trade, how another dealer in foodstuffs construed the order, how readily the Red Dog tendered would mix with wheat straw, •and the circumstance that such Red Dog was not as finely ground as the other brands of Red Dog mentioned.
One other question remains for our determination, namely:
3. Should we enter judgment for the plaintiff, or ' award the plaintiff a new trial, and if so upon what questions or points should we, under section 6365 of the Code, designate that the new trial should be had?
In the petition for the writ of error the plaintiff asks that judgment be entered in its favor for the whole amount demanded on its notice of motion, namely, $458.00, with interest, from September 18,1920. In the court below, as it appears in the record, the motion of the plaintiff was merely to set aside the verdict, which left it open for the plaintiff to have moved that court to have entered judgment in its favor had the court .granted the motion to set aside the verdict; but the latter motion was never in fact made before the trial court, so far as appears from the record.
As several times stated in the letters in evidence of the plaintiff to the defendant, there was a falling market during the time which intervened between the *147giving and acceptance of the order in question and the resale of the goods by the plaintiff. In that situation, as held in Amer. Hide, etc., Co. v. Chalkley & Co., 44-S. E. 705, 706, 101 Va. 458, in approving instruction 2 appearing on page 462 of the report of the case, the plaintiff should have used reasonable diligence in promptly disposing of the goods after the breach of the contract by the defendant. That is a question which, has not been, but which should be, passed upon by a jury, under proper instructions. As that question manifestly was not considered by the jury, or the court, nor put in issue by the parties on the trial below, we do-not feel that the facts before us bearing on that question have been sufficiently developed to enable us to feel that we would attain the ends of justice by passing-thereon and entering final judgment.
In Rosenbaums v. Weeden, Johnson & Co., 18 Gratt. (59 Va.) 785, 98 Am. Dec. 737, in view of the facts, the actual holding was, in substance, the same as in the case next above cited, although there are expressions in the opinion which indicate that the view of the court was that there is no limit of the time within which, in such case, the seller may make the resale and hold the buyer responsible for the aforesaid loss. We are, however, not disposed to adopt the latter view.
But we decide, upon the uncontroverted facts-before us appearing in the record, that the defendant breached the contract of sale sued on; that the plaintiff is entitled to recover judgment against the defendant for damages for such breach of contract; that the-measure of such damages is the loss of the plaintiff, consisting of the difference between the contract prieeof the goods and .the net price, after deducting proper expenses of resale, and of care (if any), which they produced, or would have produced, at a resale, fairly made,. *148and made at a time at which, reasonable diligence in promptly disposing of the goods required that the resale should have been made, after the breach of the contract by the defendant. And we further decide that the resale actually made in the instant case was fairly made; but we leave open for decision on the new trial three questions, and three questions only, namely: (1) When did the breach of the contract by the defendant occur? (2) Whether the plaintiff, after the breach of the contract by the defendant, used due diligence in making the resale which was made? and (3) If not, what would have been the loss of the plaintiff, if any, consisting of the difference between the contract price and the aforesaid net price of the goods, which they would have produced at a resale fairly made at a time at which reasonable diligence in promptly disposing of the goods required that the resale should have been made after the breach of the contract by the defendant? In the order remanding the case, the three questions mentioned will be designated as those upon which the new trial awarded is to be had.
Reversed and remanded for new trial upon certain questions designated.