Other cases held that damages caused by delay in delivery were not waived by a buyer's acceptance. See, e.g., Reagan Round Bale Co. v. Dickson Car Wheel Co., 55 Tex. Civ. App. 509, 121 S.W. 526, 534 (1909, no writ): In such case the defendant could waive the right to refuse to accept the presses and receive same holding the plaintiff responsible for any recoverable damage which the defendant may have sustained by plaintiff's breach of contract as to the time of delivery of the presses.
Such testimony is too uncertain to support a finding so material. Reagan Round Bale Co. v. Dickson Car Wheel Co., 55 Tex.Civ.App. 509, 121 S.W. 526. In view of the fact that the population of the county is steadily increasing from year to year and land values are rising, this court is not willing to indorse the broad, general statement that the increase in value incident to the erection of a dwelling, windmill, and the necessary outhouses and fences to establish a home for a family upon lands that originally were unsettled, wild prairie lands, has been more than offset by wind erosion following the breaking of the sod.
" Because of these express stipulations in the contract, and of the fact that the price of fuel oil was subject to frequent and substantial fluctuations, whereby contracts providing for delivery of fixed quantities of the product over long periods would involve unusual hazards to the parties, the agreement sued on must be construed as one in which time was of the essence of the contract. Todd v. Caldwell, 10 Tex. 236; Edwards v. Atkinson, 14 Tex. 373; Reagan Co. v. Dickson Co., 55 Tex. Civ. App. 509, 121 S.W. 5433; Berg v. San Antonio St. Ry. Co., 17 Tex. Civ. App. 291, 42 S.W. 647, 43 S.W. 929; Von Harten v. Nevels (Tex.Civ.App.) 234 S.W. 676. It was contemplated by the parties, and will be implied from the language of their agreement, that the oil should be delivered as and when ordered by the buyer, the irrigation company, but nevertheless within the time stipulated.
We do not think they are here more speculative and uncertain than have been permitted to be recovered under a long line of Texas cases nor any more contingent than is that class of profits recovered in Texas for crops that might have been made, harvested, and sold, where the amount can be ascertained with reasonable certainty. Grand Prairie Gravel Co. v. Wills (Tex.Civ.App.) 188 S.W. 680; Reagan Round Bale Co. v. Dickson, 55 Tex. Civ. App. 509, 121 S.W. 526; Railway v. Hill, 63 Tex. 381, 51 Am.Rep. 642; Railway v. DeGroff, 102 Tex. 433, 118 S.W. 134, 21 L.R.A. (N.S.) 749; American Co. v. Caswell (Tex.Civ.App.) 141 S.W. 1013; Walter Box v. Blackburn (Tex.Civ.App.) 157 S.W. 220; King v. Griffin, 39 Tex. Civ App. 497, 87 S.W. 844; Pittman v. Block, 48 Tex. Civ. App. 320, 106 S.W. 724.
It would be a useless consumption of time and space to quote further from the authorities in this state. The principles announced are too well established by repeated decisions to require further discussion by us, and we refer merely to the following cases, cited by defendant in error: Calvit v. McFadden, 13 Tex. 326; Railway Co. v. Hill, 63 Tex. 381, 51 Am.Rep. 642; Railway Co. v. De Groff, 102 Tex. 433, 118 S.W. 134, 21 L.R.A. (N.S.) 749; American Construction Co. v. Caswell, 141 S.W. 1013; Walter Box Co. v. Blackburn, 157 S.W. 220; Springer v. Riley, 136 S.W. 577; Carrico v. Stevenson, 135 S.W. 260; Reagan Round Bale Co. v. Dickson Car Wheel Co., 55 Tex. Civ. App. 509, 121 S.W. 526; Aultman Taylor Mch. Co. v. Capleman, 36 Tex. Civ. App. 523, 81 S.W. 1243; Dickinson Creamery Co. v. Lyle, 130 S.W. 904; King v. Griffin, 39 Tex. Civ. App. 497, 87 S.W. 844; Pitman v. Block Queensware Co., 106 S.W. 724. The court did not submit to the jury the issue as to the amount of profits which Wills might have made upon the sales to Hughes-O'Rourke Construction Company, Sears Roebuck, and to Davis Bros. Therefore no injury could have resulted to plaintiff in error from the court's action in overruling special exceptions to the paragraphs of the petition claiming damages by reason of such sales having been prevented, nor in admitting evidence bearing upon such issues.