In a case brought by a materials buyer against a salvage company (seller), the burden of proving the loss incurred by consequential damage rests upon the buyer.
Plaintiff building material buyer entered into an oral agreement with defendant salvage company to purchase 600,000 used bricks at a price of one cent each. Plaintiff paid defendant $ 6000 in advance. However, defendant only delivered 400,000 bricks to plaintiff. Plaintiff then filed suit against defendant for the return of the proportionate part of the purchase price paid for the bricks that he did not receive, plus damages. The trial court awarded $ 13,645 in damages to plaintiff. An appeal followed.
Must the buyer prove consequential damages by mitigating or “covering” their loss?
Yes, buyer must attempt to mitigate their loss or else they forfeit such consequential damages.
There is no evidence in the record whatever that Plaintiff at any time made any effort to cover or in any other manner attempt to prevent or mitigate a loss resulting from the Defendant's non-delivery of the 200,000 brick in question. In the absence of such a showing, consequential damages are unauthorized.