On Motion for Rehearing.
It is insisted in the motion for rehearing that we erred in adoiJting an improper measure of damages in rendering judgment in behalf of appellants, urging that the evidence showed and the jury found that the plaintiffs, within 30 days after they began to feed their cattle, discovered that the cotton seed meal furnished was unsound and was injuring the cattle, and notwithstanding this knowledge continued to use it, for which reason they were not entitled to recover.
The law seems well settled that it is the duty of the party complaining to minimize his damage as much as possible.
If appellants, after discovering that the meal furnished was unfit for use, could, by reasonable effort, have secured other feed with which to fatten the cattle, it became their duty to do so, and the measure of damages in such case would be the difference between the contract price and the price at which they could have purchased the other feed, which in the present case was, as found by the jury, the sum of $1S0.
It is-said in 13 Oye. p. 71, that:
“Where an injured party finds that a wrong has been perpetrated on him, he should use all reasonable means to arrest the loss. He cannot stand idly by and permit the loss to increase, and then hold the wrongdoer liable for tile loss which he might have prevented. Waco Artesian Water Co. v. Cauble, 19 Tex. Civ. App. 417, 47 S. W. 538; Trinity R. R. Co. v. O’Brien, 18 Tex. Civ. App. 690, 46 S. W. 389; Brown v. Death, 17 Tex. Civ. App. 262, 42 S. W. 655, 44 S. W. 42. It is only incumbent upon him, however, to use reasonable exertion and reasonable expense, and the question in such cases is always whether the act was a reasonable one, having regard to all the circumstances of the particular case.”
Again, on page 75 of Cyc., it is said:
“One whose property is endangered or injured by the negligence of another must exercise reasonable care to protect it from further injury; and especially is this rule true where notice of the wrong or injury has been brought home to the party seeking to recover damages, and he has taken no steps to protect himself from further loss. The rule only requires a party to protect himself from the injurious consequences of the wrongful act by the exercise of ordinary effort and care and moderate expense; such rule has no application where the injury could only be prevented by extraordinary effort or cost.”
See, also, H. & T. C. R. W. Co. v. Mitchell, 38 Tex. 85; Brandon v. Mfg. Co., 51 Tex. 128; Womack v. W. U. Tel. Co., 58 Tex. 182, 44 Am. Rep. 614; H. & T. C. v. Richards, 59 Tex. 375; T. M. Ry. Co. v. Julius Herbeck, 60 Tex. 602; Houston, E. & W. T. Ry. Co. v. Adams, 63 Tex. 207; Cooper v. City of Dallas, 83 Tex. 242, 18 S. W. 565, 29 Am. St. Rep. 645; Vogt v. Dorsey, 85 Tex. 90, 19 S. W. 1033; Carhart & Bro. v. Killough, 1 White & W. Civ. Cas. Ct. App. § 112; O’Neil v. Davis, 1 White & W. Civ. Cas. Ct. App. § 417; Stoker v. Wilson, 3 Willson, Civ. Cas. Ct. App. § 10; Mo. Pac. Ry. Co. v. Rushin, 3 Willson, Civ. Cas. Ct. App. § 318; Mo. Pac. Ry. Co. v. Scott, 2 Willson, Civ. Cas. Ct. App. § 325; R. Co. v. Cook, 2 Willson, Civ. Cas. Ct. App. § 661.
Appellants bought the cattle for the purpose of feeding them for market, which fact was known to appellees, and there, was evidence on the part of appellants showing that appellees expressly warranted the feed purchased as being sound and suitable for feeding cattle for market; it therefore became *881tlieir duty under their warranty to furnish sound meal and hulls for the purpose mentioned. But notwithstanding such warranty, if the facts show that, after beginning to use such feed, appellants discovered that it was not sound, but unfit for use, and was injuring the cattle, and thereafter continued to feed same, whereby the cattle were damaged, they could not recover for any injury resulting after such discovery.
If the jury should believe from the evidence that appellants did not actually know them to be unsound, but merely believed them to be so, and, after calling the attention of appellee to the condition of the meal and hulls, appellee assured them that they were sound, and insisted upon their continuing to use them, then if appellants relied upon such representations, and continued to use them, they, in our judgment, would be entitled to recover whatever injury the cattle suffered by reason thereof.
In this connection it would be well to observe that the evidence shows and the jury found that plaintiffs did not discover the unsound condition of the feed until about a month after they had been using it. Under this phase of the case, plaintiffs were entitled to recover whatever injury, if any, the cattle may have suffered from the use of such improper feed during said period. But no account seems to have been taken of this in the trial below.
The court below gave judgment for plaintiffs for the sum of $180, based upon the theory that appellants, after discovering that the feed was unfit for usé, could have purchased suitable feed, such recovery being the difference between the contract price and the then prevailing market price for such feed. This was error for two reasons1: First, because the petition did not seek to recover upon such phase of the case, and without which no recovery could be had (G. C. & S. F. Ry. Co. v. Cole, 4 Willson, Civ. Cas. Ct. App. § 97; Western Union Tel. Co. v. Lively, 4 Willson, Civ. Cas. Ct. App. § 192); and, second, the proof showed that appellants failed to purchase such other feed, and hence could not recover for something they did not in fact furnish.
We were mistaken in our original opinion in holding that the evidence failed to show that the cattle suffered any loss from standing in wet and muddy pens, but, on the contrary, it appears from the evidence, and the jury found, that the cattle were damaged and injured on this account to the extent of $717.97. In view of another trial, if the proof is the same on this phase of the case, then the issue should be so framed as to take this matter into consideration, allowing proper deductions for such loss.
For the reasons indicated, appellants1’ motion for rehearing is granted, and our former opinion rendering judgment in behalf of appellants is set aside, and the cause remanded for another trial not inconsistent with the views herein expressed.
Reversed and remanded.
Opinion Correcting in Part Opinion on Motion for Rehearing.
We held in our opinion on motion for rehearing^ that plaintiffs could not recover the sum of $180, it being the difference between the contract price of the feed furnished and what other suitable feed could have been bought upon the market, _ on the ground, among' other things, that plaintiffs did not purchase such other feed. After due consideration, we are inclined to believe that such statement was not sound, and therefore desire to retract it, which is accordingly done. However, we see no reason for any change of such opinion in other respects, and overrule appellee’s second, as well as appellant’s, motion for rehearing.
Motions overruled. Opinion corrected in part.