This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
It is the duty of the party not in default to use such means as a reasonable and prudent man would use to mitigate damages.1 On the one hand, the party not in default cannot recover ows v. Telegraph Co., 132 N. C. 40; 43 S. E. 512; Bright v. Telegraph Co., 132 N. C. 317; 43 S. E. 841; Cashion v. Telegraph Co., 123 X. C. 267; 31 S. E. 493; Marsh v. Telegraph Co., 65 S. C. 430; 43 S. E. 953; Wadsworth v. Telegraph Co., 86 Tenn. 695; 6 Am. St. Rep. 864; 8 S. W. 574; Western Union Telegraph Co. v. Wilson, - Tex. - ; 75 S. W. 482.
7 Russell v. Telegraph Co., 3 Dak. 315; Chapman v. Telegraph Co., 88 Ga. 763; 30 Am. St. Rep. 183; 17 L. R. A. 430; 15 S. E. 901; Reese v. Telegraph Co., 123 Ind. 294; 7 L. R. A. 583; 24 X. E. 163; Western Union Telegraph Co. v. Adams, 28 Ind. App. 420; 63 X. E. 125; West v. Telegraph Co., 39 Kan. 93; 7 Am. St. Rep. 530; 17 Pae. 807; Western Union Telegraph Co. v. Rogers, 68 Miss. 748; 24 Am. St.
Rep. 300; 13 L. R. A. 859; 9 So. 823; Morton v. Telegraph Co.. 53 O. S. 431; 53 Am. St. Rep. 648; 32 L. R. A. 735; 41 X. E. 689.
8 Reed v. Clark, 47 Cal. 194; Robinson v. Craver, 88 la. 381; 55 X. W. 492; Grubbs v. Pence (Ky.), 73 S. W. 785; rehearing denied. 74 S. W. 709; Rutter v. Collins, 103 Mich. 143; 61 X. W. 267.
9Lewis v. Holmes, 109 La. 1030; 61 L. R. A. 274; 34 So. 66.
10 Hale v. Bonner, 82 Tex. 33; 27 Am. St. Rep. 850; 14 L. R. A. 336; 17 S. W. 605.
11 Renihan v. Wright, 125 Ind. 536; 21 Am. St. Rep. 249; 9 L. R. A. 514; 25 N. E. 822.
12 Gatzow v. Buening, 106 Wis. 1; 80 Am. St. Rep. 17; 49 L. R. A. 475; 81 N. W. 1003.
1 Roehm v. Horst, 178 U. S. 1; Watts v. Camors, 115 U. S. 353; for damages which follow breach, but which might have been prevented by such means.2 Thus A sold to B pork in leaky barrels. The defects were discovered by B before any harm had been done to the pork. B could recover as damages only the cost of repacking the pork in tight barrels.3 In case of breach before performance is complete, amounting to a discharge, the party not in default cannot insist on completing performance, increasing damages, and recovering the full contract price. Thus A made a contract for advertising its goods in B's cars for twelve months. At the end of two months and seventeen days A ordered such advertising discontinued. B continued to perform the contract. It was held that B could not recover the contract price for the entire term; but only the contract price for two months and seventeen days plus damages caused by such breach.4 If the injured party fails to mitigate damages as he should, he is not precluded from all recovery,5 though he cannot recover for the increased damages due to his own negligence. The question whether under all the circumstances the party not in default did what he should to mitigate damages is a question of fact.6 On the other hand, in mitigating such damages, the party not in default is bound merely to use reasonable care. He is not an insurer of results.7 If his reasonable and prudent care does not mitigate the damages he may nevertheless recover the cost of such attempted mitigation. Thus on breach of a warranty of plastering, the injured party attempted in good faith and in a reasonable manner to remedy defects by patching. This attempt failed. It was held that lie could recover as part of his damages the cost of such unsuccessful attempt.8 The rule as to the duty to mitigate damages and the effect of such mitigation applies only to the immediate consequences of performance. After the loss is fixed, the skill or good luck of the party not in default may result in his avoiding ultimate financial loss in the transaction. This is, however, of no consequence in estimating damages. He is entitled to the benefit of the contract which has been broken and to the result of his own skill in avoiding ultimate loss; and such results cannot enure to the party in default. Thus A agreed to cure certain fruit for B, but performed his contract in a negligent manner. A is liable to B in damages, even though B finally succeeded in selling such fruit at prices usually obtained for good fruit.9 So in breach of a contract to transport grain the liability of the carrier is not affected by the fact that the shipper made a very favorable settlement with persons to whom he had agreed to sell such grain.10 So where a telegraph company delays a message and thereby prevents a sale of corn at a price above the market price, the company is liable for the difference betwen the price at which the corn would have sold and the market price, even if the vendor subsequently sold such corn at a higher price.11 It is therefore the duty of a discharged employe to seek other employment; of the owner of a vessel whose charterer refuses to use and pay for it to seek another charterer ;12 of a lessee whose lessor has refused to put him in possession of the leased premises to lease others ;13 and in such cases the amount which the injured party thus received from others, or the amount which he might have received by the use of reasonable care and diligence, must be deducted from the amount of damages. If the vendor fails to deliver goods agreed upon, and the vendee can purchase similar goods in the market he cannot increase his damages by refusing to make such purchase.14
Jordan v. Patterson, 67 Conn. 473; 35 Atl. 521; Hodges v. Fries, 34 Fla. 63; 15 So. 682; Sherman Center Town Co. v. Leonard, 46 Kan. 354; 26 Am. St. Rep. 101; 26 Pac. 717; Talley v. Courter, 93 Mich. 473; 53 N. W. 621; Uhlig v. Bar-num, 43 Neb. 584; 61 N. W. 749; Howard v. Daly, 61 N. Y. 362; 19 Am. Rep. 285; Colvin v. Oil Co., 66 S. C. 61; 44 S. E. 380.
2 Colvin v. Oil Co., 66 S. C. 61; 44 S. E. 380.
3 Hitchcock v. Hunt, 28 Conn. 343.
4 Ward v. Food Co., 119 Wis. 12; 96 N. W. 388.
5 Hurxthal v. Lumber Co., 53 W. Va. 87; 97 Am. St. Rep. 954; 44 S. E. 520.
6 Lonergan v. Waldo, 179 Mass. 135; 88 Am. St. Rep. 365; 60 N. E. 479.
7 The Thomas P. Sheldon, 115j Fed. 779.
8 Nye, etc., Co. v. Snyder, 56 Neb. 754; 77 N. W. 118.
9 E. E. Thomas Fruit Co. v. Start, 107 Cal. 206; 40 Pac. 336.
10 Cobb v. Ry., 38 la. 601.
11 Western Union Telegraph Co. v. Grain Co., - Neb. - ; 63 L. R. A. 803; 97 N. W. 305.
12 Watts v. Camors, 115 U. S. 353.
13 Hodges v. Fries, 34 Fla. 63; 15 So. 682.