Lee v. . Upton

100 S.E. 268, 178 N.C. 198, 1919 N.C. LEXIS 421

Opinion

AlleN, J.

Conceding -that the contract required the defendant to furnish barrels so the plaintiff could deliver the potatoes between the first and the fifth of June, the evidence of the plaintiff shows that the failure to do so was not the cause of the delay, and that the defendant was not damaged because he did not get the barrels in time.

The plaintiff testified in his own behalf: “I sent word to the defendant that my potatoes were ready for digging and I wanted to start on 5 June. I sent this message on 4 June.”

He also admitted that he had over 700 empty barrels at his house on 5 June, and his brother, M. D. Lee, who was a witness for the plaintiff, testified that he got for the plaintiff from the defendant 500 barrels in one load and 250 barrels in another before 4 June.

If, therefore, the plaintiff was not ready to dig his potatoes until 5 June, and he then had 750 barrels, it is difficult to see upon what theory he can hope to recover damages for failure to furnish barrels to enable him to make delivery between the first and fifth of June. The evidence shows also that the plaintiff did not begin digging until 11 June, and that he completed the delivery of his crop of 1,502 barrels by 20 June.

Tbe evidence as to tbe sweet potato crop is immaterial as tbe plaintiff is not entitled to recover damages, but it was also properly excluded upon the ground that there was no allegation to support it, and because there is nothing to prove that such damage was reasonably within the contemplation of the parties.

Affirmed.