#### ARMOUR FERTILIZER WORKS v. GEORGE F. SIMPSON.

(Filed 5 April, 1922.)

1. Contracts — Breach—Fertilizer—Damages—Crops.

Where the purchaser of fertilizer has suffered damages in the diminution of the value of his crop, caused by the vendor’s breach of his contract in making delivery beyond the time specified, and at the time of the sale the vendor’s sales agent knew the kind of crop the fertilizer was to be used on and the time of its planting, such damages may be recovered as are reasonable and may fairly be considered, either as arising naturally, according to the course of such matters, from the breach of the contract itself, or such as may reasonably be supposed to have been in the contemplation of the parties at the time of the sale, as the probable result of the breach of its terms; but excluding all speculative and conjectural elements which.have no foundation for proof..

S. Same — Waiver.

Where damages to crops are recoverable by the purchaser of fertilizer for the breach by the vendor to deliver at the time specified in the contract of sale, the purchaser does not waive his right of recovery by giving his note for the purchase price when the loss was occasioned subsequently and could not then have been ascertained or estimated.

*252Appeal by defendant from Kerr, J., at tbe October Term, 1921, of ClIMBERLAND.

Plaintiff sued to recover tbe amount alleged to be due on a note executed by defendant for fertilizer. Defendant admitted tbe execution of tbe note, and pleaded plaintiff’s breach of contract in failing promptly to deliver tbe guano. There was evidence for defendant tending to show that tbe order was given plaintiff’s agent in February; that a contract was made for delivery in March; that plaintiff bad delivered other fertilizer in Cumberland County in March upon an order given in February; that plaintiff’s shipment was made about tbe first of May, and received a few days later; and that in consequence of tbe delay in making tbe shipment tbe defendant’s crop was damaged to tbe extent of $700 to $800. Tbe defendant pleaded a counterclaim for such loss. Tbe note was executed after tbe fertilizer bad been accepted by tbe defendant. At tbe close, of tbe defendant’s evidence tbe court held that tbe defendant could not recover on tbe counterclaim, and rendered judgment in favor of tbe plaintiff for tbe amount of tbe note.

Defendant excepted and appealed.

Goole & Cooh for plaintiff.

Bullard & String field for defendant.

Adams, J.

Tbe defendant admitted tbe execution of tbe note and introduced several witnesses who testified in bis behalf. Their evidence tended to show that tbe plaintiff’s agent was. acquainted with tbe quality of tbe defendant’s soil and informed of tbe purpose for which tbe guano was to be used, and that tbe plaintiff, through inadvertence in misplacing or losing tbe defendant’s order, delayed tbe shipment from March until May. We think tbe evidence should have been submitted to tbe jury. “Where two parties have made a contract which one of them has broken, tbe damages which tbe other party ought to receive, in respect of such breach of contract, should be such as may fairly and reasonably be considered either arising naturally, that is, according to tbe usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in tbe contemplation of both parties, at tbe time they made tbe contract, as tbe probable result of tbe breach of it.” Hadley v. Baxendale, 9 Exch., 353. If tbe purchaser of guano may show a breach of warranty as to its quality by.tbe effect of its use upon bis crops (Garter v. McGill, 168 N. C., 507), why may be not by proper evidence show tbe relative production of land with and without tbe fertilizer, or tbe usual effect under ordinary conditions of delayed planting when fertilizer is used? Evidence as to cultivation and tillage, tbe crop planted, tbe time of planting, tbe quality of tbe *253soil, and tbe condition of tbe weather and tbe seasons may, under proper instructions, be considered by tbe jury. Garter v. McGill, supra; Tomlinson v. Morgan, 166 N. C., 560; Herring v. Armwood,, 130 N. C., 177; Spencer v. Hamilton, 113 N. C., 49; Neal v. Hardware Co., 122 N. C., 105; Gatlin v. R. R., 179 N. C., 435. In material respects, Ober v. Katzenstein, 160 N. C., 440, is distinguishable from tbe case under consideration; but in that case it is said that when tbe vendor knows that tbe fertilizer is for tbe purchaser’s crops, and fails to deliver it, and tbe purchaser, because of tbe lateness of tbe season, is unable to purchase it elsewhere, be is entitled to damages. In tbe present case there was evidence that tbe plaintiff’s agent repeatedly told tbe defendant that tbe shipment would be made.

But in applying tbe decisions, as suggested in Carter v. McGill, 171 N. C., 775, all purely speculative and conjectural elements which have no foundation for proof should be excluded.

¥e cannot bold as an inference of law that tbe defendant waived bis alleged defense by tbe execution of tbe note; for, according to bis contention, tbe loss be claims subsequently to have suffered could not then be ascertained or estimated.

Tbe judgment of bis Honor in dismissing tbe defendant’s counterclaim is reversed, and this will be certified to tbe end that tbe court may determine tbe matters in controversy in accordance with law.,

Eeversed.