Pearson, J.,
delivered the opinion of the Court.
This was an action of indebitatus assumpsit, brought by the plaintiffs against the defendants, for the recovery of the price and value of a raft containing eleven hundred and two round saw logs, estimated at 802,232 feet, bargained and sold, as alleged by plaintiffs,' to defendants. The declaration contained only the common counts, there being no count upon a special contract designating the quality of the timber and fixing the price per thousand to be paid for the same.
The pleas were the general issue and a set-off.
There was a verdict and judgment for the plaintiffs below, to. which the defendants excepted and moved for a new trial. This motion was refused and the defendants bring their appeal before this Court.
Although several errors have been assigned, we see but three points demanding our attention, to-wit:
1. Whether a recovery can be had upon the common counts, when a special contract has been proved and not executed or rescinded.
2. Whether improper testimony was admitted upon the trial; and lastly,
3. Whether the verdict of the jury was sustained by the testimony. ,
The case was elaborately and. ably argued, and the law on the subject brought fully before the Court.
The principle of law involved in the first proposition is of familiar occurrence — is found in all the elementary books^ and admits of no question. The only difficulty here consists in its application to the case under review. ' The ques[324]*324tion was made in the Court below at tire trial, and the presing Judge charged the jury on the subject as follows :
“ If you find from the evidence that these logs were purchased under a special contract, or that there was a special agreement that plaintiff's were to deliver to the defendants, at their mill, logs of a particular size, description and quality, for a certain stipulated price, then plaintiff's cannot recover, there being no spiecial count in the declaration — unless you find the contract has been fully performed by the plaintiffs, or rescinded, abandoned or extinct by some act of the defendants.”
The legal proposition contained in this charge was not ■disputed in the argument, nor do we perceive any reason, to question its soundness. The law, therefore, having been correctly laid down to the jury, it remains only to inquire whether, from the testimony, they were ¡^ermited to ignore the existence of such special contract. And here it will be seen it is not a question of conflicting testimony, or of the weight of testimony to support the verdict, but rather of the sufficiency of the unrebutted evidence to establish a contrary conclusion. Viewed in this aspect,it presented to the Court below, upon the motion for a new trial, the question of the weight and conclusiveness of testimony in its most delicate form. The Court was moved to adjudge that the jury should have believed that which they u]3on their oaths declared they did not believe. The exercise of such power would certainly prove a very high and danger, ous prerogative in the Court, and we think the Circuit Judge very wisely declined it. Nevertheless, we are free to admit that the testimony in this case, of Mr. J. M. Daniel, goes far, in our mind, to establish the special contract contended for, though its execution or recision is more doubtful, but the finding of the jury is a legal resolution of all doubt in the matter, and must, for all present purposes, be conclusive on the subject.
[325]*3252. The exception was originally taken at the trial, that inasmuch as the declaration contained no special count upon a special contract, no evidence to establish such contract was admissible. This objection -was overruled, and J. M. Daniel, one of the witnesses called by the plaintiffs, was permitted to testify that “these logs were delivered under a contract,” which he states substantially to have been that they were to be of a quality fully equal to a former raft, which had been purchased from the same parties, and sawed by him at the same mill, and delivered at the mill free of all expenses to the defendants, at six dollars and thirty-seven and a half cents per thousand. The issue was upon the quantum valebant, and such testimony going to establish a special contract for timber of a certain quality, to be delivered at the cost of the plaintiffs at defendants’ mill, at a stipulated price, was clearly inadmissible. The principle that the evidence must be confined to the issue is universal and conclusive on the question. We cannot know what effect this testimony may have had upon the minds of the jury, nor what injury the defendants may have sustained by its admission ; but it is manifestly inadmissible by the rules of law, and the defendants are therefore entitled to the benefit of their exception in this respect.
3. It appears from the testimony that there were two methods of measuring round logs, both of which are laid down in Preston’s Tables. By one of these ¿methods, the solid cubic contents of the log is obtained, while by the other, the quantity which they will make when manufactured at a saw mill into boards is ascertained. Mr. John Smith, a sworn inspector and surveyor of lumber, was called by the plaintiffs to survey the raft of logs in question, and he testifies substantially the distinction between the former, called the “cubic rule,” and the latter called the “saw log rule,” the former giving a larger quantity than the latter. Mr. J. M. Daniel, another of the plain[326]*326tiffs’ witnesses, makes the same explanation, and says the “cubic rule” gives about one-fifth more lumber in the stick than the “saw log rule,” the difference consisting in an estimate and deduction, under tbe latter rule, of the quantity consumed by the saw kerf or cut in the process of manufacture into boards.
On this subject the Court charged the jury as follows, to-wit: “If you find from the evidence that at the time of the delivery of these logs, Preston’s board measure rule —that is, the 'saw log rule — was the rule by which the contents of round logs was ascertained and determined between vendors and purchasers, then you are to presume that these logs were purchased by this rule; for if they were not to have been measured by this rule, it is incumbent upon the plaintiffs to show that defendants agreed to receive them by some other rule of measurement.”
This instruction has not been complained of by the counsel on either side, nor do we see any objection to it. It should therefore have been a guide to the jury in making up their verdict. What have they done? They have based their verdict upon Smith’s survey and measurement, which he testifies was made by the “ cubic rule,” thereby ignoring the existence of the “board measure” or “saw log rule,” and the question is, whether such a finding is supported by the testimony.
However disinclined we are to invade the proper province of a jury in estimating the force and effect of testimony, this is a case of too glaring a departure from all legal principle for the verdict to be permitted to stand-There was no testimony whatever to support the idea that the “cubic rule” was the prevailing and customary mode of measurement adopted in the locality of this' transaction between dealers in saw logs. On the contrary, Mr.
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Pearson, J.,
delivered the opinion of the Court.
This was an action of indebitatus assumpsit, brought by the plaintiffs against the defendants, for the recovery of the price and value of a raft containing eleven hundred and two round saw logs, estimated at 802,232 feet, bargained and sold, as alleged by plaintiffs,' to defendants. The declaration contained only the common counts, there being no count upon a special contract designating the quality of the timber and fixing the price per thousand to be paid for the same.
The pleas were the general issue and a set-off.
There was a verdict and judgment for the plaintiffs below, to. which the defendants excepted and moved for a new trial. This motion was refused and the defendants bring their appeal before this Court.
Although several errors have been assigned, we see but three points demanding our attention, to-wit:
1. Whether a recovery can be had upon the common counts, when a special contract has been proved and not executed or rescinded.
2. Whether improper testimony was admitted upon the trial; and lastly,
3. Whether the verdict of the jury was sustained by the testimony. ,
The case was elaborately and. ably argued, and the law on the subject brought fully before the Court.
The principle of law involved in the first proposition is of familiar occurrence — is found in all the elementary books^ and admits of no question. The only difficulty here consists in its application to the case under review. ' The ques[324]*324tion was made in the Court below at tire trial, and the presing Judge charged the jury on the subject as follows :
“ If you find from the evidence that these logs were purchased under a special contract, or that there was a special agreement that plaintiff's were to deliver to the defendants, at their mill, logs of a particular size, description and quality, for a certain stipulated price, then plaintiff's cannot recover, there being no spiecial count in the declaration — unless you find the contract has been fully performed by the plaintiffs, or rescinded, abandoned or extinct by some act of the defendants.”
The legal proposition contained in this charge was not ■disputed in the argument, nor do we perceive any reason, to question its soundness. The law, therefore, having been correctly laid down to the jury, it remains only to inquire whether, from the testimony, they were ¡^ermited to ignore the existence of such special contract. And here it will be seen it is not a question of conflicting testimony, or of the weight of testimony to support the verdict, but rather of the sufficiency of the unrebutted evidence to establish a contrary conclusion. Viewed in this aspect,it presented to the Court below, upon the motion for a new trial, the question of the weight and conclusiveness of testimony in its most delicate form. The Court was moved to adjudge that the jury should have believed that which they u]3on their oaths declared they did not believe. The exercise of such power would certainly prove a very high and danger, ous prerogative in the Court, and we think the Circuit Judge very wisely declined it. Nevertheless, we are free to admit that the testimony in this case, of Mr. J. M. Daniel, goes far, in our mind, to establish the special contract contended for, though its execution or recision is more doubtful, but the finding of the jury is a legal resolution of all doubt in the matter, and must, for all present purposes, be conclusive on the subject.
[325]*3252. The exception was originally taken at the trial, that inasmuch as the declaration contained no special count upon a special contract, no evidence to establish such contract was admissible. This objection -was overruled, and J. M. Daniel, one of the witnesses called by the plaintiffs, was permitted to testify that “these logs were delivered under a contract,” which he states substantially to have been that they were to be of a quality fully equal to a former raft, which had been purchased from the same parties, and sawed by him at the same mill, and delivered at the mill free of all expenses to the defendants, at six dollars and thirty-seven and a half cents per thousand. The issue was upon the quantum valebant, and such testimony going to establish a special contract for timber of a certain quality, to be delivered at the cost of the plaintiffs at defendants’ mill, at a stipulated price, was clearly inadmissible. The principle that the evidence must be confined to the issue is universal and conclusive on the question. We cannot know what effect this testimony may have had upon the minds of the jury, nor what injury the defendants may have sustained by its admission ; but it is manifestly inadmissible by the rules of law, and the defendants are therefore entitled to the benefit of their exception in this respect.
3. It appears from the testimony that there were two methods of measuring round logs, both of which are laid down in Preston’s Tables. By one of these ¿methods, the solid cubic contents of the log is obtained, while by the other, the quantity which they will make when manufactured at a saw mill into boards is ascertained. Mr. John Smith, a sworn inspector and surveyor of lumber, was called by the plaintiffs to survey the raft of logs in question, and he testifies substantially the distinction between the former, called the “cubic rule,” and the latter called the “saw log rule,” the former giving a larger quantity than the latter. Mr. J. M. Daniel, another of the plain[326]*326tiffs’ witnesses, makes the same explanation, and says the “cubic rule” gives about one-fifth more lumber in the stick than the “saw log rule,” the difference consisting in an estimate and deduction, under tbe latter rule, of the quantity consumed by the saw kerf or cut in the process of manufacture into boards.
On this subject the Court charged the jury as follows, to-wit: “If you find from the evidence that at the time of the delivery of these logs, Preston’s board measure rule —that is, the 'saw log rule — was the rule by which the contents of round logs was ascertained and determined between vendors and purchasers, then you are to presume that these logs were purchased by this rule; for if they were not to have been measured by this rule, it is incumbent upon the plaintiffs to show that defendants agreed to receive them by some other rule of measurement.”
This instruction has not been complained of by the counsel on either side, nor do we see any objection to it. It should therefore have been a guide to the jury in making up their verdict. What have they done? They have based their verdict upon Smith’s survey and measurement, which he testifies was made by the “ cubic rule,” thereby ignoring the existence of the “board measure” or “saw log rule,” and the question is, whether such a finding is supported by the testimony.
However disinclined we are to invade the proper province of a jury in estimating the force and effect of testimony, this is a case of too glaring a departure from all legal principle for the verdict to be permitted to stand-There was no testimony whatever to support the idea that the “cubic rule” was the prevailing and customary mode of measurement adopted in the locality of this' transaction between dealers in saw logs. On the contrary, Mr. Smith himself testifies, that he had adopted the “saw log rule” in his surveys previous to this transaction, with a few [327]*327exceptions, all of which, occasioned difficulties and were rejected, and that subsequent to this survey, he returned to his former practice under the “ saw log rule.” He further states that he was induced to adopt the “cubic rule” in this particular survey by one of the plaintiffs, and so far as it appears, without the knowledge or consent of the defendants. Mr. Barrs, who was called by the defendants, testifies that he was accustomed to surveying logs and familiar with it, though not a sworn surveyor. He surveyed this raft at the defendants’ mill, at their request, having first given the plaintiffs notice to attend the survey, which they declined to do. He made the survey according to the “saw log rule,” which was “the rule by which logs were bought and sold on the river, unless a different one is used by special agreement.” The cubic rule is a different one. In these logs there would he a considerable difference in the quantity, according to which rule they were measured by. There would be fifty or sixty thousand feet less if measured by the saw log rule.
Hpon the presumption then that the cubic rule was not the prevailing and customary rule, it is apparent that the jury, in basing their verdict upon Smith’s survey made by that rule, charged the defendants with this excess. The testimony of all the other witnesses establish fully that the “saw log rule ” was the recognized rule. This verdict then is clearly unsupported by the evidence, and contrary to the charge of the Court, and it must therefore be set aside, the judgment reversed, and a new trial granted.