#### W. S. WILSON v. S. H. SCARBORO and Wife.

(Filed 20 October, 1915.)

1. Contracts — Breach.—Timber—-Evidence—Measure of Damages — Lumber— Market Talue.

In an action to recover damages for a breach of contract whereby the plaintiff was prevented from cutting the timber contracted for on the defendant’s land, it is competent, upon the issue as to the measure of damages, for the plaintiff to show the market value of lumber in that locality as a basis for showing his loss after deducting the cost of manufacture, etc.

2. Same — Particular Sales — Corroborative Evidence.

Where, upon the issue as to the measure of damages arising from a breach of contract in the sale of timber, evidence of the market value of lumber in that locality is relevant and competent, it is permissible to show prices obtained for particular sales of lumber, for such; in the aggregate, show the market value thereof; and evidence of particular sales is especially competent when corroborative of testimony of the market value of the lumber at the time and place.

3. Appeal and Error — Objections and Exceptions — Evidence — Unanswered Questions — Contracts—Breach—Damages—Diminution.

Where exception is taken to ruling out questions asked a witness on the trial, it must in some way appear what the answers of the witness sought to be elicited would have been, so that the Supreme Court may see wherein the appellant has been prejudiced; and while in this action to recover on a breach of contract the court recognizes and discusses the rule that the party injured is required to minimize his injury by the exercise of reasonable care, it is held that the appellant has not sufficiently shown by his evidence that he is entitled to its application.

Appeal by defendant from Daniels, J., at the April Term, 1915, of Wake.

Civil action. This case was here before and is reported in 163 N. C., 380. We there ordered a new trial for errors committed below, and at the last trial issues only as to the damages were submitted to the jury, the following verdict having been returned:

1. What damages, if any, is the plaintiff entitled to recover of the defendants by reason of being prevented by the defendants from cutting the timber described in the complaint ? Answer: “$1,700.”

2. What damages, if any, are the defendants entitled to recover of the plaintiff on account of stumps cut too high, logs left by plaintiff upon the ground, and standing trees left standing by plaintiff upon his sawmill location, as alleged in the answer? Answer: “$100.”

3. Did the plaintiff negligently cause the burning of defendants’ woods, as alleged in the answer? Answer: “Yes.”

4. Did the defendants, by their own negligence, contribute to the burning of the defendants’ woods, as alleged in the reply? Answer: “No.”

*6554. What damages, if any, are tbe defendants entitled to recover of tbe plaintiff on account of sucb burning? Answer: “$250.”

Judgment was entered tbereon for tbe plaintiff and tbe defendant appealed.

R. N. Simms, Armistead Jones <& Son, W. H. Lyon, Jr., Douglass & Douglass for plaintiff.

J ones &. Bailey for defendant.

Walxeb, J.,

after stating tbe case: There are substantially but two questions presented on tbis appeal.

First. It was necessary for plaintiff to prove bis damages by testimony as to tbe value of tbe timber wbicb, by tbe wrongful conduct of tbe defendant, be was prevented from cutting on tbe land, under tbeir contract, and in order to do so, among other pertinent evidence, be offered to show at wbat price lumber was selling in that market, and was permitted to do so over defendant’s objection. We do not see why tbis was not competent and relevant. It tended to prove tbe value of tbe timber, and tbe certain profit be would have made if tbe defendant bad not violated tbe contract. Tbe ground of objection to tbis evidence, as stated in tbe brief, is .that plaintiff should have been restricted to the market-price and not allowed to .speak of any particular sale or purchase by him at tbe time. But tbe market price is generally ascertained by prices received at collective sales in the ordinary course of business, and wbat was paid for tbe article in a sale is some evidence of value. It was held in Small v. Pool, 30 N. C., 41, that while tbe price given by tbe purchaser and that for which be sold tbe property do not conclusively fix tbe value or amount of damages for a breach of tbe contract of sale, “each was competent as some evidence of tbe value of tbe article sold at tbe respective times of tbe purchase and tbe sale, and as such tbe jury bad a right to have it,” citing Clare v. Maynard, 32 E. C., 713 (7 Carr. & P., 741), wbicb was an action for damages for breach of warranty in tbe sale of a horse, tbe question being as to its value. Chief Justice Denman said: “As tbe warranty and tbe unsoundness are admitted on tbe record, tbe only question is tbe amount of tbe damages. Tbe first item claimed is tbe loss on tbe value of tbe horse. I am of opinion that tbe amount of damages is wbat tbe horse would be worth if sound, deducting tbe price it sold for after tbe discovery of tbe unsoundness; and I think the price at wbicb it was sold to tbe plaintiff is not conclusive as to its value, though I think it very strong evidence.” And again: “There is a case of Cox v. Walker, now before tbe Court. It was tried at Kingston, and there a horse-dealer bad sold tbe horse to a livery stable keeper, who sold it to Sir John Johnstone at a higher price. In all tbe law of tbe world, I believe this is a new point. My *656view of it is, that the fair value of the horse, if sound, is the measure of the damages, and that the sum the plaintiff gave is only the evidence of the value. The case of Curtis v. Hannay, 3 Esp., 82, bears on the present.” It was also held that plaintiff could not recover ten pounds, which he had lost on a resale at a price equal to that amount over and above the original price, it being merely the loss of a good bargain. Oases in this Court recognizing the same rule as to value are Boggan v. Horne, 97 N. C., 268; McPeters v. Ray, 85 N. C., 462, and Perry v. Insurance Co., 137 N. C., 403, which cites Boggan v. Horne, supra; 1 Elliott on Ev., sec. 182.

The right to recover damages of a prospective nature in cases of this kind, and the limitations upon it, are discussed fully by Justice Holce in Wilkinson v. Dunbar, 149 N. C., 20. But this case is more like Mc-Peters v. Ray, supra, for here the witness first testified as to the market value before stating at what price he had several times in 1910 bought and sold the same kind of timber and lumber. This was properly admitted as some evidence in confirmation of his opinion as to the.market price.

But defendant further urges that the plaintiff should have diminished the loss by the exercise of proper care after he was apprised of the breach by the defendant of the contract, and should have bought other lumber or timber for his purpose. This is a familiar doctrine, but there is some variety in the statement of it. Compensation for a wrong is limited to such consequences as the injured party could not have avoided by reasonable care or diligence. All other consequences are regarded as remote, the rule being the same in cases of. contract and those of tort. The injured party’s own negligence or willful fault in failing to take reasonable precautions to prevent or reduce the damage, after notice of defendant’s wrong, is regarded as the proximate cause of such injuries as could have in this way been avoided.

Courts frequently speak of the duty to make the damages as light as possible, but it is a duty only in the sense that compensation is denied for losses which might have been prevented by careful conduct on his part, and they are, therefore, said to be remote because the will or negligence of the injured party has intervened as a separate and independent cause producing them. Hale on Damages, p. 64 (29), and cases in note 86; Loker v. Damon, 17 Pick. (Mass.), 284; Sutherland v. Wyer, 67 Me., 64; Sherman C. T. Co. v. Leonard, 46 Kansas, 354; Davis v. Fish, 1 G. Greene (Iowa), 406; Thompson v. Shattuck, 2 Mile (Mass.), 615. The rule has been welí considered and illustrated by apt examples in numerous decisions upon the subject, and the result of the cases, as summed up, may be thus stated.

If the party injured has it in his power to take measures by which his loss may be less aggravated, this will be expected of him. Thus, in *657a contract of assurance, where tbe assured may be entitled to recover for a total loss, be, or tbe master employed by bim, becomes tbe agent of tbe assurer to save and turn to tbe best account sucb of tbe property assured as can be preserved. Tbe purchaser of perishable goods at auction fails to complete bis contract. What shall be done? Shall tbe auctioneer leave tbe goods to perish, and throw tbe whole loss on tbe purchaser? That would be to aggravate it unreasonably and unnecessarily. It is bis duty to sell them a second.time, and, if they bring less, be may recover tbe difference, with commissions and other expenses of resale, from tbe first purchaser. If tbe party entitled to tbe benefit of a contract can protect himself from a loss arising from a breach, at a trifling expense or with reasonable exertions, be fails in social duty if be omits to do so, regardless of tbe increased amount of damages for which be may intend to bold tbe other contracting party liable. Qui non prohibet, cum prohibere possit, jubet. And be who has it in bis power to prevent an injury to bis neighbor and does not exercise it is often, in a moral if not in a legal point of view, accountable for it. Tbe law will not permit bim to throw a loss resulting from a damage to himself upon another, arising from causes for which tbe latter may be responsible, but which tbe party sustaining tbe damage by common prudence could have prevented. For example, a party contracts for a quantity of bricks to build a bouse, to be delivered at a given time, and engages masons and carpenters to go on with tbe work. Tbe bricks are not delivered. If other bricks of an equal quality, and for tbe stipulated price, can be at once purchased on tbe spot, it would be unreasonable, by neglecting to make the • purchase, to claim and receive of tbe delinquent party damages for tbe workmen left unemployed and tbe amount of rent which might be obtained for tbe bouse if it bad been built. Tbe party who is not chargeable with a violation of bis contract should do tbe best be can in sucb cases; and, for any unavoidable loss occasioned by tbe failure of tbe other, be is justly entitled to a liberal and complete indemnity. Tbe doctrine, as thus formulated, with tbe reasons for it, and hypothetical cases showing its practical application, will be found in an able opinion by Judge Weston in Miller v. Mariners’ Church, 7 Me., 51. Tbe injured party is required only to make reasonable and not extraordinary efforts to limit or restrict tbe resultant damage. We have recognized this principle in several of our cases. Oldham v. Kerchner, 79 N. C., 106 (s. c., 81 N. C., 430); Hassard-Short v. Hardison, 114 N. C., 482; Tillinghast v. Cotton Mills, 143 N. C., 268; Bowen v. King, 146 N. C., 385; Hocutt v. Telegraph Co., 147 N. C., 186; Edwards v. Telegraph Co., ibid., 127; Smith v. Telegraph Co., 167 N. C., 248. See, also, 13 Cyc., p. 71; Wells v. Nat. L. Assn., 53 L. R. A., pp. 108, 109; Lloyd v. Lloyd, 60 Vt., 288; 8 A. and E. Enc. of Law, *658605; 1 Sutherland on Damages, secs. 88, 89; 2 Joyce on Damages, see. 1288. The rule is tersely stated in 8 A. and E. Enc. of Law, supra: “As it is the duty of a party injured by a breach of a contract, or a tort, to make reasonable effort to avoid damages therefrom, such damages as might by reasonable diligence on his part have been avoided are not to be regarded as the natural and probable result of the defendant’s acts. There can be no recovery, therefore, for damages which might have been prevented by such reasonable efforts.”

Ve do not think, though, that in this case defendant has properly shown what the answers of the witnesses to the question he propounded would have been. Their answers, if they had been given, might have been very disappointing and to such an extent as to be most unfavorable to the defendant, instead of helping out his defense. It has been often held that in such a case there will be no reversal, as we are unable to see that the proof would have been made if the question had been admitted, or that there was any prejudice to appellant by reason of the adverse ruling. Wallace v. Barlow, 165 N. C., 676; Brinkley v. Railroad Co., 168 N. C., 428. There was no evidence that the plaintiff could have reduced the damages, or had a reasonable opportunity to do so, and the proof offered by the defendant did not tend, as we think, to show it, though we are left largely to mere conjecture as to what he could have proved, if anything, which the law regards as worthy of consideration by the jury; and it would also appear that plaintiff did the best he could under the circumstances. Unusual diligence was not required.

The charge of Judge Daniels was very fair to both parties and, as we view it, was entirely free from any fault. The verdict was not at all immoderate.

No error.