
    BANKERS’ TRUST CO. v. SCHULZE.
    
    (No. 270-3497.)
    (Commission of Appeals of Texas, Section B.
    Jan. 25, 1922.)
    1. Damages <@=362(1) — Injured person required to exercise ordinary diligence to mitigate damages.
    Injured person is required to exercise ordinary diligence to mitigate his damages.
    2. Damages <&wkey;62(4) — Plaintiff with privilege of cutting hay on defendant’s land not required to mitigate damages by similar contract with others on ejectment before termination of period.
    Where defendant sold plaintiff the privilege of- cutting hay off tract of land during specified term, but prematurely ejected him, plaintiff was not precluded from recovering damages for inability to cut hay by failure, on being ejected from defendant’s land, to make similar contract with owners of other land; the rule requiring injured person to mitigate damages being inapplicable.
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Action by B. F. Schulze against the Bankers’ Trust Company.
    Judgment for plaintiff affirmed by the Court of Civil Appeals (220 S. W. 570), and defendant brings error. Judgments of District Court and of Court of Civil Appeals affirmed.
    W. T. Armstrong, of Galveston, and Andrews, Streetman, Logue & Mobley, of Houston, for plaintiff in error.
    James B. & Charles,J. Stubbs, of Galveston, for defendant in error.
    
      
      “Rehearing denied February 22, 1922.
    
   POWELL, J.

This is an action for damages, instituted in the district court of Galveston county, Tex., by B. F. Schulze, to recover of the Bankers’ Trust Company the sum of $2,000 which the plaintiff alleged 'to be the damage he had sustained by reason of a breach by defendant of the following contract:

“The Bankers’ Trust Company, for a consideration of one hundred and no/100 ($100.00) dollars, leases to B. F. Schulze of ‘ Arcadia, Texas, the privilege of cutting hay off of what is known as Eureka Orchards tract in the I. R. Lewis Survey in Galveston county, Texas, between this date and November 1st, 1918, said consideration of $100.00 to be paid by said Schulze to the Bankers’ Trust Company out of the proceeds of the sale of said hay as follows: ,
“$75.00 from the first car of hay shipped and $25.00 from the second car of hay shipped from said land, and a lien is retained by said Bankers’ Trust Company upon all the hay cut off of said tract until said $100.00 is paid.
“It is further understood that the $100.00 agreed upon is to be paid absolutely and is not in any way affected by the amount of hay cut and sold off of said tract.
“Signed this the 24th day of September, A. D. 1917. Bankers’ Trust Company.
- “By N. E. Meador, T. P.
“B. F. Schulze.”

Schulze alleged that the trust company ejected and excluded him from the leased premises in February, 1918, and placed one O. C. Rupe in possession thereof; that, had he not been dispossessed, he would have cut 175 tons of hay from the leased premises before his lease expired; that said hay would have been worth $20 per ton and would have netted him a profit of $2,000.

The Bankers’ Trust Company answered by general and special exceptions, general denial, and special plea that the contract actually made and entered into between the parties only extended to the 1st day of November, 1917, and that the date, “1918” was inserted in the contract through an oversight and a typographical error, and constituted a mutual mistake.

The cause was submitted to a jury on the following general charge:

“Unless you believe from the evidence that the date of ‘November 1st, 1918’ was inserted in the contract instead of ‘November 1st, 1917’ by mutual mistake, accident, or inadvertence, you will return a verdict for the plaintiff and assess his damages at such a sum as will compensate him for the loss of the crop of hay that he would probably have gathered in 1918 had he not been prevented from doing so by the defendant. In such case the proper measure of damages would be the market value of the crop he would probably have gathered, at the market price at Arcadia at the time, after deducting therefrom the cost of gathering the hay and the preparation for marketing the same, together with the expense of marketing, as may be - shown by the evidence.”
“If you believe from the evidence that the date, ‘November 1st, 1918’ was inserted instead of ‘November 1st, 1917,’ by the mistake, accident, or inadvertence of both parties, you will return a verdict for the defendants.”

In response to that charge, the jury returned a verdict finding for Schulze, and awarding him damages in the sum of $1,000. Judgment was entered accordingly. The judgment of the district court was affirmed by the Court of Civil Appeals. See 220 S. W. 570.

The Bankers’ Trust Company obtained a writ of error in the Supreme Court and the cause is now before -us for review and recommendation.

The controlling question upon this appeal is whether or not the trial court erred in his charge to the jury and in rendering judgment thereafter in ignoring the doctrine of the duty of a plaintiff, in suing for damages arising from a breach of contract, to use ordinary diligence to mitigate or minimize the same. Counsel for the trust company elicited much evidence tending to show that Schulze could have almost entirely saved himself from damage by the use of ordinary diligence. For instance, Schulze himself admitted that in the same vicinity he could have bought hay at 25 cents per ton, but that he made no effort to do so.

Counsel for the Bankers’ Trust Company excepted to the general charge of the court for failing to take above doctrine into account in defining the measure of damages, and also submitted a special charge covering that exception. The exception was overruled and the special charge refused. Errors are assigned because of those rulings of the trial court, and the judgment is further attacked as being unsupported by the evidence, in that the undisputed evidence shows that the plaintiff, by use of ordinary diligence, could have mitigated, his damages.

The rule invoked by the plaintiff in error as being the one which should have governed the trial court was ably declared by the Supreme Court of Texas more than 40 years ago by Justice Bonner in case of Brandon v. Manufacturing Co., 51 Tex. 121, as follows:

“It is well settled, that it is not only the moral but the legal duty of one who seeks redress for another’s wrong to use due diligence to prevent loss thereby. The principle applies' to a breach of contract, and a party is not entitled to compensation for injurious consequences from such breach, so far as he had the information, time, and opportunity necessary to prevent them. Sedg. on Dam. marg. p. 94, and authorities cited.”

The rule just quoted is still the general rule in this state, never having been overruled. However, no fact case like the one at bar, involving an application of that rule, has apparently heretofore been before our Supreme Court. That being true, and in view of the further fact that there seems to be some conflict of decision in other jurisdictions in this respect, we have taken the liberty of consulting very freely with our Supreme Court in the premises. In what we shall hereafter say, we are convinced we but reflect the views of that court itself.

The controlling question on this appeal is whether or not the aforesaid rule announced by Justice Bonner applies to a fact case like the one at bar. . The trial court and Court of Civil Appeals hold that it does not. The. latter court, at considerable length, discussed the facts of this case, and we have reached the conclusion that its construction of the contract and its application of the law thereto are in principle correct. Consequently we do not see that any useful purpose would be subserved by any extended discussion upon our part.

• As we construe the contract in suit, it is one of sale, and defendant in error is entitled to the net profits under it.

The plaintiff in error sold defendant in error the right or privilege of cutting hay off of the tract of land in controversy during a specified time. After cutting it, the hay was to belong to defendant in error. No part of it belonged to plaintiff in error: and, as provided in the contract, defendant in error was to pay the consideration of $100 independent of whether or not any hay was gathered from the land. Defendant in error under the contract had the right to appropriate all the hay to his own use and benefit, and, being deprived thereof, he was entitled, as damages, to recover the value of what he would probably have gathered, less the expense of cutting, preparing for market, and marketing the same. The contract is one of sale, with the right during a given period to enter upon plaintiff in error’s land and remove the property; and it is not such a one as would require that the purchaser mitigate his damages caused by the seller’s breach of it by going into the market and contracting. for and purchasing other haiy meadows and cutting and marketing hay from them.

We think the district court rendered the proper judgment, and that the Court of Civil Appeals correctly affirmed it. Therefore we recommend that the judgments of the district court and Court of Civil Appeals be affirmed.

CURETON, C. J. The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court. 
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