Perry v. . Kime , 169 N.C. 540 ( 1915 )

WALKER, J., concurs in the result. The right to recover damages for diminution in the yield of crops alleged to have been caused by breach of contract or by some tortious act has been recognized in several cases in our reports (Spencer v. Hamilton,113 N.C. 49; Herring v. Armwood, 130 N.C. 177), but always with misgivings, because of the difficulty of ascertaining definitely the cause of the damage, and on account of the uncertainty, frequently amounting to speculation, of determining and estimating the result.

We have been confronted on one hand with the legal principle that, when there is a breach of contract or a tort, and damage ensues as the direct and natural result, the party injured is entitled to just compensation, and that the uncertainty as to amount is not more doubtful than in other cases in which recoveries are sustained here and elsewhere, such as profits in business under certain conditions and physical pain and mental anguish, and on the other, with the knowledge that so many and such diverse circumstances affect the yield of crops that it is almost impossible to find out the cause or to estimate the result.

The character of the soil and its condition; the kind of seed used, when planted and how; the preparation of the soil for planting; the quality of fertilizer, the quantity and the time and manner of its application; the cultivation of the crop; the harvesting of the crop; the seasons, and other circumstances enter into the estimate of what ought to be made, and when all are favorable it is rare that the owner of land gathers in the fall what he expected in the spring.

A delay of a week in planting may make or destroy the crop, and sometimes, under apparently similar conditions, there is a good crop on one side of the road and a poor yield on the other side.

These considerations have led to the conclusion that a recovery of damages on account of the diminished yield of the crop will not be allowed upon a mere comparison of the crop yield of one year with that of another (Tomlinson v. Morgan, 166 N.C. 560), and that is the case presented by the plaintiff.

(542) He says he generally made seven or eight bales of cotton and seventy-five barrels of corn, and that in 1914 he made two bales of cotton and twenty-five barrels of corn, but he fails to state how the land was prepared, how it was cultivated, what was the rainfall, or to give any circumstance which would justify the jury in awarding damages upon his second cause of action.

There must, therefore, be a new trial upon the fifth and sixth issues. We have carefully examined the exceptions relating to the first cause of action, and find no error.

Partial new trial.

WALKER, J., concurs in result.

Cited: Gulley v. Raynor, 185 N.C. 98; Harris v. Smith, 216 N.C. 352;Perry v. Doub, 238 N.C. 237.