Sims, P.,
after making the foregoing statement, delivered. the following opinion of the court:
Among the assignments of error are the following:
“That the court erred in giving instruction No. 2 * *; (and)
“That the court erred in refusing to give instructions A and B, asked for by the defendant.”
The instructions mentioned appear in the bill of exceptions copied above.
Before considering the questions presented by these assignments of error, however, it will be necessary for us to dispose of a question raised by counsel for the plaintiff in oral argument, which is as follows:
1. Does the bill of exceptions in the record concerning the instructions show that all of the instructions given are included therein, making it appear from the record that the alleged defect in instruction No. 2 was not cured by some other instruction which may have been given, which does not appear in the record, so as to enable the appellate court* under the established rule of procedure on the subject, to consider the alleged defect in instruction No. 2, given by the trial court?
The question must be answered in the affirmative.
We have dealt with this question a number of times and very recently in Harris’ Case, 133 Va. 700, 112 S. E. 753, and in Parker’s Case, 135 Va. 625, 115 S. E. 566.
As stated in Harris’ Case; “The rule is that the record should show in terms, or by clear inference, that the instructions found in the record are all the instructions given by the trial court.”
In Parker’s Case, we held that where the certificate is that “the following instructions were offered * *,” and the certificate thereupon sets out certain instructions, such a certificate shows, by clear inference, all of the instructions which were offered.
[329]*329In the instant ease the bill of exceptions certifies that “the following instructions were given by the court.” The bill of exceptions thereupon sets out instructions 1 and 2 and certifies that the defendant by counsel “objected to instruction No. 2, which was given by the court,” etc. There was no reason for including instruction No. 1 in the bill, as it was not objected to, unless it was because all of the instructions given were included in the bill. We think, therefore, that it appears from the record, by clear inference, that the instructions No. 1 and No. 2 found in the record are all of the instructions which were given in the instant case.
Coming now to the consideration of the assignments of error ab‘ove mentioned, it is manifest that whether the trial court erred in giving instruction No. 2 and in refusing to give instructions A and B depends upon the following question:
2. Was the evidence before the jury in behalf of the defendant sufficient to have warranted the jury in finding that there was a market in which, by the exercise of reasonable diligence on the part of the plaintiff, the timbers embraced in the contract could have been procured by the plaintiff at the time of the breach of the contract by the defendant, within the contract time, or as soon as the substituted pieces were in fact procured (no damage being asserted in the case as due to such difference in time), at a price substantially less than the price paid by the plaintiff for the substituted steel pieces?
We say this for the following reasons:
It is true that it is well settled that where a seller is informed at the time of the contract of sale of goods that the goods are for shipment to another, and the seller breaches the contract by failing to deliver the goods specified within the time stipulated in the con[330]*330tract, and the buyer substitutes for the goods embraced in the contract other articles, the nearest in price and quality which he can, by reasonable diligence, obtain at the time of the breach, and, where the ease is one of resale, obtains no greater price for the substituted goods than the contract price, the measure of damages which the buyer is entitled to recover is the difference between what he pays for the substituted articles and the contract price for the goods, provided there was no available market at the time of the breach in which the goods contracted for could, by the exercise of reasonable diligence on his part, have been then obtained at a price substantially less than that paid. Perry Tie & Lumber Co. v. Reynolds, 100 Va. 264, 40 S. E. 919; Hinde v. Liddell, L. R. 10 Q. B. 265; Rhind v. Freedley, 74 N. J. L. 138, 64 Atl. 963-4; Coal Co. v. Smelting Co., 53 Ill. App. 565. But it is equally well settled that, in case of such a breach of contract, it is the duty of the buyer to use reasonable diligence to minimize his damages arising from the breach. He cannot arbitrarily substitute for the goods contracted for any goods he may choose. If, at the time of the breach of the contract, there is a market from which he can, by reasonable diligence, obtain the goods contracted for, the measure of his damages for the breach of the contract is the difference between the contract price and the market price of the goods in such market at the time of the breach, plus any additional expense of freight, etc., not the price actually paid for substituted articles. See •cases above cited and also Sauer v. McClintic, etc., Co., 179 Mich. 618, 146 N. W. 422.
There was in the instant case, as appears from the statement preceding this opinion, testimony before the jury in behalf of the defendant tending to show, and •sufficient to have warranted the jury in finding, that [331]*331there was, at the time of the aforesaid breach of the contract, such a market as is mentioned in the question 2, stated above — that being a fact in issue. There was, it is true, testimony for the plaintiff in direct conflict with that for the defendant on that subject. But the finding of the aforesaid fact in issue from that conflict of testimony was, as is well settled under the procedure established in this jurisdiction, a subject solely within the province of the jury, and, if the giving of instruction 2 and the refusal of instructions A and B had the effect of withdrawing that subject from the jury, it was error and reversible error.
Now, on the latter subject, this only need be said:
Instruction 2, set forth in the statement preceding this opinion, as appears from the reading of it, is silent with respect to the qualification which, in accordance with the authorities above cited, it should have contained, namely, a qualification to the effect that, if the jury believed from the evidence, in addition to the facts stated in the instruction, the further fact that there was no market, at the time of the breach of the contract, in which the plaintiff, by the exercise of reasonable diligence, could have obtained the articles contracted for-as promptly-as they were obtained by the substitution, of the steel articles (there being no claim in the case that the actual delay involved in the obtaining of the substituted articles caused any additional loss or damage), then the jury should find for the plaintiff, etc. And, although silent with respect to this essential qualification, the instruction directed a verdict for the plaintiff. It thus withdrew from the jury the finding from the conflict of testimony aforesaid, the aforesaid fact in issue; unless that defect can be considered as cured by instruction 1.
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Sims, P.,
after making the foregoing statement, delivered. the following opinion of the court:
Among the assignments of error are the following:
“That the court erred in giving instruction No. 2 * *; (and)
“That the court erred in refusing to give instructions A and B, asked for by the defendant.”
The instructions mentioned appear in the bill of exceptions copied above.
Before considering the questions presented by these assignments of error, however, it will be necessary for us to dispose of a question raised by counsel for the plaintiff in oral argument, which is as follows:
1. Does the bill of exceptions in the record concerning the instructions show that all of the instructions given are included therein, making it appear from the record that the alleged defect in instruction No. 2 was not cured by some other instruction which may have been given, which does not appear in the record, so as to enable the appellate court* under the established rule of procedure on the subject, to consider the alleged defect in instruction No. 2, given by the trial court?
The question must be answered in the affirmative.
We have dealt with this question a number of times and very recently in Harris’ Case, 133 Va. 700, 112 S. E. 753, and in Parker’s Case, 135 Va. 625, 115 S. E. 566.
As stated in Harris’ Case; “The rule is that the record should show in terms, or by clear inference, that the instructions found in the record are all the instructions given by the trial court.”
In Parker’s Case, we held that where the certificate is that “the following instructions were offered * *,” and the certificate thereupon sets out certain instructions, such a certificate shows, by clear inference, all of the instructions which were offered.
[329]*329In the instant ease the bill of exceptions certifies that “the following instructions were given by the court.” The bill of exceptions thereupon sets out instructions 1 and 2 and certifies that the defendant by counsel “objected to instruction No. 2, which was given by the court,” etc. There was no reason for including instruction No. 1 in the bill, as it was not objected to, unless it was because all of the instructions given were included in the bill. We think, therefore, that it appears from the record, by clear inference, that the instructions No. 1 and No. 2 found in the record are all of the instructions which were given in the instant case.
Coming now to the consideration of the assignments of error ab‘ove mentioned, it is manifest that whether the trial court erred in giving instruction No. 2 and in refusing to give instructions A and B depends upon the following question:
2. Was the evidence before the jury in behalf of the defendant sufficient to have warranted the jury in finding that there was a market in which, by the exercise of reasonable diligence on the part of the plaintiff, the timbers embraced in the contract could have been procured by the plaintiff at the time of the breach of the contract by the defendant, within the contract time, or as soon as the substituted pieces were in fact procured (no damage being asserted in the case as due to such difference in time), at a price substantially less than the price paid by the plaintiff for the substituted steel pieces?
We say this for the following reasons:
It is true that it is well settled that where a seller is informed at the time of the contract of sale of goods that the goods are for shipment to another, and the seller breaches the contract by failing to deliver the goods specified within the time stipulated in the con[330]*330tract, and the buyer substitutes for the goods embraced in the contract other articles, the nearest in price and quality which he can, by reasonable diligence, obtain at the time of the breach, and, where the ease is one of resale, obtains no greater price for the substituted goods than the contract price, the measure of damages which the buyer is entitled to recover is the difference between what he pays for the substituted articles and the contract price for the goods, provided there was no available market at the time of the breach in which the goods contracted for could, by the exercise of reasonable diligence on his part, have been then obtained at a price substantially less than that paid. Perry Tie & Lumber Co. v. Reynolds, 100 Va. 264, 40 S. E. 919; Hinde v. Liddell, L. R. 10 Q. B. 265; Rhind v. Freedley, 74 N. J. L. 138, 64 Atl. 963-4; Coal Co. v. Smelting Co., 53 Ill. App. 565. But it is equally well settled that, in case of such a breach of contract, it is the duty of the buyer to use reasonable diligence to minimize his damages arising from the breach. He cannot arbitrarily substitute for the goods contracted for any goods he may choose. If, at the time of the breach of the contract, there is a market from which he can, by reasonable diligence, obtain the goods contracted for, the measure of his damages for the breach of the contract is the difference between the contract price and the market price of the goods in such market at the time of the breach, plus any additional expense of freight, etc., not the price actually paid for substituted articles. See •cases above cited and also Sauer v. McClintic, etc., Co., 179 Mich. 618, 146 N. W. 422.
There was in the instant case, as appears from the statement preceding this opinion, testimony before the jury in behalf of the defendant tending to show, and •sufficient to have warranted the jury in finding, that [331]*331there was, at the time of the aforesaid breach of the contract, such a market as is mentioned in the question 2, stated above — that being a fact in issue. There was, it is true, testimony for the plaintiff in direct conflict with that for the defendant on that subject. But the finding of the aforesaid fact in issue from that conflict of testimony was, as is well settled under the procedure established in this jurisdiction, a subject solely within the province of the jury, and, if the giving of instruction 2 and the refusal of instructions A and B had the effect of withdrawing that subject from the jury, it was error and reversible error.
Now, on the latter subject, this only need be said:
Instruction 2, set forth in the statement preceding this opinion, as appears from the reading of it, is silent with respect to the qualification which, in accordance with the authorities above cited, it should have contained, namely, a qualification to the effect that, if the jury believed from the evidence, in addition to the facts stated in the instruction, the further fact that there was no market, at the time of the breach of the contract, in which the plaintiff, by the exercise of reasonable diligence, could have obtained the articles contracted for-as promptly-as they were obtained by the substitution, of the steel articles (there being no claim in the case that the actual delay involved in the obtaining of the substituted articles caused any additional loss or damage), then the jury should find for the plaintiff, etc. And, although silent with respect to this essential qualification, the instruction directed a verdict for the plaintiff. It thus withdrew from the jury the finding from the conflict of testimony aforesaid, the aforesaid fact in issue; unless that defect can be considered as cured by instruction 1.
We do not think that instruction 1 can be considered [332]*332as having cured such defect. It does concern the qualification mentioned, but it deals with it in such general terms that it sets up no standard and furnished no guide to the jury by which they were to ascertain whether the buyer did exercise the reasonable diligence mentioned in this instruction. It was only in the event that there was a market, such as is above repeatedly mentioned, existing at the time of the breach of the contract, that the duty to exercise the diligence mentioned in instruction 1 arose; and such instruction is itself silent on the subject of the market.
Moreover, in view of the fact that there was testimony tending to support instructions A and B, the defendant was, under the well settled rule on the subject, entitled to have those or similar instructions given to the jury, as they presented the defendant’s theory of the ease, and, as aforesaid, correctly propounded the law of the case bearing on the measure of damages, provided the jury found the facts to be as hypothetically stated in those instructions.
It follows, therefore, from what we have said, that we are of opinion that the giving of instruction 2 and the refusal of the court to give instructions A and B constituted reversible error.
3. There is one other assignment of error, in addition to those above mentioned, which is based on an exception taken to the action of the trial court in allowing a witness for the plaintiff to testify, over the objection of the defendant, as to the purpose for which the plaintiff was going to use the timbers in question. As we have seen, from what we have said above, in connection with the authorities above cited, since it appears on the face of the contract in question that the timbers were bought for shipment to a third person, that is sufficient, along with the other circumstances in evi[333]*333dence, to make the doctrine on the subject of the measure of damages above set forth applicable, so that it is immaterial whether the purpose for which the plaintiff was going to use the timbers did or did not further specifically appear in evidence.
For the reasons above set forth the ease will be reversed and a new trial awarded the defendant.
Reversed and a new trial awarded the defendant.