Wood, J.,
(after stating the facts). I. Appellant contends' that the court erred in overruling its motion to require appellee to elect between inconsistent causes of action and in overruling its demurrer to the complaint, which .embraced inconsistent causes of action, and in admitting testimony as to alleged false representations made by one of the partners before the contract was entered into. Appellee, in its prayer for instruction, which the court granted, only asked that the issue of negligence set up in its second cause of action be submitted to the jury. This was tantamount to an abandonment by the- appellee of its alleged cause of action for deceit and fraud. The court expressly- instructed the jury, at the request of the appellant, “to find in favor of the defendants” (appellants) “on the first cause of action.”
The legal effect of these rulings of the court was to permit appellee to strike from the complaint its cause of action for deceit and fraud and to withdraw that issue entirely from the jury. This is expressly authorized by section 6080 of Kirby’s Digest. But even if the first cause of action had not thus been stricken out, the instruction to find affirmatively for the appellant on the first cause of action removed all possible prejudice that could have resulted to appellant from a consideration by the jury of this issue.
II. Objection is urged to various rulings of the court in the admission of testimony, (a) Witness, W. W. Dickinson, was asked by appellee this question: “After entering into the contract what did you do in the performance of it?” and answered, “Everything that he requested to be done.”
Alter making the above answer, witness detailed the things that were done by him in the performance of the contract. There was no prejudicial error in witness stating his conclusion since he detailed the facts upon which the jury could determine whether or not the contract had been performed by the appellee. It was competent, under 'the issues joined, for the appellee to show whether or not it had complied with its contract. Appellee alleged “that it had performed all things required of it by the contract.” This allegation was specifically denied by the appellant. Furthermore, appellant affirmatively alleged that appellee “failed in every way to comply with the contract, and that by its failure and refusal to perform the contract it prevented the defendants from carrying out the contract.” And appellant alleged that it had been damaged in the sum of $12,500.00 “by reason of plaintiff’s violation of the contract,” and prayed judgment for such damages.
(b) W. W. Dickinson, Jr., testified that he kept a daily register of what , transpired at the plant while the appellee and the appellant were operating under the contract. He was asked to refer to this for the purpose of refreshing his memory and to tell the jury what was done by the defendants (appellants) from the time they first came to the plant. The record shows that the court instructed the jury “that the written memorandum is not evidence and cannot be used as evidence in the suit, only to refresh the memory of the witness. The witness is required to testify from what he knows, not what he had written. ”
There was no error in the court permitting the witness to use the memoranda for the purpose indicated, and the court’s rulings on the various objections along this line show that the court permitted the witness to use the memoranda solely for the purpose of refreshing his memory, and not as affirmative evidence.
(c) Counsel for appellants urge in their brief that the court erred in permitting W. W. Dickinson, Jr.,’to state what Leggate said. The record shows that the witness testified that Leggate, a partner in the firm of appellants, while the brick were being burned, said to witness, “there was absolutely no use in trying to fool with our brick unless he put coal in them; said it couldn’t be done. ”
This testimony was competent on the issue as to whether or not appellant had violated its contract and as to whether or not it was negligent in the manner of burning the brick.
(d) There was no error in permitting W. W. Dickinson, Jr., to testify that 2100 degrees of heat would have burned the brick. This testimony was relevant to the issue of negligence.
III. Ist is next contended that there was no evidence to support the verdict. The testimony on this issue is set forth in the statement, and we will not repeat it here. The testimony warranted the jury in finding that the appellant was negligent in not bringing the Mins to a sufficient degree of heat to successfully burn them. Appellant’s attention was called to the fact, wMle the Mins were being burned, that the pyrometer, the instrument for measuring the degrees of heat, showed that the temperature of the Min was not sufficient to burn merchantable brick. While appellant’s agent in charge stated that the instrument had been broken and was not working properly, the evidence does not show that he made any demand upon the appellee for a new instrument or that he was dissatisfied with the pyrometer that was being used, or took any steps to obtain another, and there was testimony before the jury sufficient to warrant the finding that the necessary temperature to burn the brick so as to make them merchantable was not produced because appellant’s agent in charge of the burning negligently turned off the oil used as fuel and thus reduced the temperature or prevented the temperature from reaching the necessary degree to properly burn the brick.
The contract provided that if the fuel cost of burning the first five Mins, or any number of Mins demanded by the appellee, not to exceed twelve, was over fifty cents per thousand brick, then the appellee was not liable to the appellant in tbe sum of $12,500 for the purchase price of the use of the process. There was sufficient evidence to warrant the jury in concluding that i the necessary degree of heat was not attained because of the desire and effort on the part of the appellant in burning the brick to keep the fuel cost within the limit of fifty cents per thousand in order to secure the contract price for the use of the process.
IV. It would unnecessarily lengthen this opinion to set out the evidence in detail bearing on the issue as to whether or not the appellee violated its contract, and as to whether or not the appellant was negligent in the manlier in which it burnt the brick. These were issues of fact for the jury, under the evidence.
V. The next question is, were these issues properly submitted. The contract bound the appellee to set up the kilns and install the machinery necessary for the use of the process, according to the plans and specifications to be furnished by the appellant, and to pay for the services of the experts that were necessary to be used in building the kilns and installing the machinery and in burning the brick. Appellee was also required to furnish all necessary steam and fuel.
The contract bound the appellant to burn at least five kilns of brick, and not more than twelve if demanded by the appellee, and these brick were to be burned so that they would be “merchantable, acceptable in the local market.
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Wood, J.,
(after stating the facts). I. Appellant contends' that the court erred in overruling its motion to require appellee to elect between inconsistent causes of action and in overruling its demurrer to the complaint, which .embraced inconsistent causes of action, and in admitting testimony as to alleged false representations made by one of the partners before the contract was entered into. Appellee, in its prayer for instruction, which the court granted, only asked that the issue of negligence set up in its second cause of action be submitted to the jury. This was tantamount to an abandonment by the- appellee of its alleged cause of action for deceit and fraud. The court expressly- instructed the jury, at the request of the appellant, “to find in favor of the defendants” (appellants) “on the first cause of action.”
The legal effect of these rulings of the court was to permit appellee to strike from the complaint its cause of action for deceit and fraud and to withdraw that issue entirely from the jury. This is expressly authorized by section 6080 of Kirby’s Digest. But even if the first cause of action had not thus been stricken out, the instruction to find affirmatively for the appellant on the first cause of action removed all possible prejudice that could have resulted to appellant from a consideration by the jury of this issue.
II. Objection is urged to various rulings of the court in the admission of testimony, (a) Witness, W. W. Dickinson, was asked by appellee this question: “After entering into the contract what did you do in the performance of it?” and answered, “Everything that he requested to be done.”
Alter making the above answer, witness detailed the things that were done by him in the performance of the contract. There was no prejudicial error in witness stating his conclusion since he detailed the facts upon which the jury could determine whether or not the contract had been performed by the appellee. It was competent, under 'the issues joined, for the appellee to show whether or not it had complied with its contract. Appellee alleged “that it had performed all things required of it by the contract.” This allegation was specifically denied by the appellant. Furthermore, appellant affirmatively alleged that appellee “failed in every way to comply with the contract, and that by its failure and refusal to perform the contract it prevented the defendants from carrying out the contract.” And appellant alleged that it had been damaged in the sum of $12,500.00 “by reason of plaintiff’s violation of the contract,” and prayed judgment for such damages.
(b) W. W. Dickinson, Jr., testified that he kept a daily register of what , transpired at the plant while the appellee and the appellant were operating under the contract. He was asked to refer to this for the purpose of refreshing his memory and to tell the jury what was done by the defendants (appellants) from the time they first came to the plant. The record shows that the court instructed the jury “that the written memorandum is not evidence and cannot be used as evidence in the suit, only to refresh the memory of the witness. The witness is required to testify from what he knows, not what he had written. ”
There was no error in the court permitting the witness to use the memoranda for the purpose indicated, and the court’s rulings on the various objections along this line show that the court permitted the witness to use the memoranda solely for the purpose of refreshing his memory, and not as affirmative evidence.
(c) Counsel for appellants urge in their brief that the court erred in permitting W. W. Dickinson, Jr.,’to state what Leggate said. The record shows that the witness testified that Leggate, a partner in the firm of appellants, while the brick were being burned, said to witness, “there was absolutely no use in trying to fool with our brick unless he put coal in them; said it couldn’t be done. ”
This testimony was competent on the issue as to whether or not appellant had violated its contract and as to whether or not it was negligent in the manner of burning the brick.
(d) There was no error in permitting W. W. Dickinson, Jr., to testify that 2100 degrees of heat would have burned the brick. This testimony was relevant to the issue of negligence.
III. Ist is next contended that there was no evidence to support the verdict. The testimony on this issue is set forth in the statement, and we will not repeat it here. The testimony warranted the jury in finding that the appellant was negligent in not bringing the Mins to a sufficient degree of heat to successfully burn them. Appellant’s attention was called to the fact, wMle the Mins were being burned, that the pyrometer, the instrument for measuring the degrees of heat, showed that the temperature of the Min was not sufficient to burn merchantable brick. While appellant’s agent in charge stated that the instrument had been broken and was not working properly, the evidence does not show that he made any demand upon the appellee for a new instrument or that he was dissatisfied with the pyrometer that was being used, or took any steps to obtain another, and there was testimony before the jury sufficient to warrant the finding that the necessary temperature to burn the brick so as to make them merchantable was not produced because appellant’s agent in charge of the burning negligently turned off the oil used as fuel and thus reduced the temperature or prevented the temperature from reaching the necessary degree to properly burn the brick.
The contract provided that if the fuel cost of burning the first five Mins, or any number of Mins demanded by the appellee, not to exceed twelve, was over fifty cents per thousand brick, then the appellee was not liable to the appellant in tbe sum of $12,500 for the purchase price of the use of the process. There was sufficient evidence to warrant the jury in concluding that i the necessary degree of heat was not attained because of the desire and effort on the part of the appellant in burning the brick to keep the fuel cost within the limit of fifty cents per thousand in order to secure the contract price for the use of the process.
IV. It would unnecessarily lengthen this opinion to set out the evidence in detail bearing on the issue as to whether or not the appellee violated its contract, and as to whether or not the appellant was negligent in the manlier in which it burnt the brick. These were issues of fact for the jury, under the evidence.
V. The next question is, were these issues properly submitted. The contract bound the appellee to set up the kilns and install the machinery necessary for the use of the process, according to the plans and specifications to be furnished by the appellant, and to pay for the services of the experts that were necessary to be used in building the kilns and installing the machinery and in burning the brick. Appellee was also required to furnish all necessary steam and fuel.
The contract bound the appellant to burn at least five kilns of brick, and not more than twelve if demanded by the appellee, and these brick were to be burned so that they would be “merchantable, acceptable in the local market. ” If the cost of burning these was less than fifty cents per thousand, then appellee was to pay the' sum of $12,500.00 for its right to the use of the process, according to the terms of the contract, but if the cost of burning the brick exceeded fifty cents per thousand, then appellee was not required to make the payments.
As we construe the contract, it absolutely bound the appellant to burn as many as twelve kilns of merchantable brick if the appellee demanded that many to be burned. It bound appellant to burn these kilns so as to make the brick merchantable whether the fuel cost exceeded fifty cents per thousand brick or not.
The contract, in these respects, is unambiguous and no oral testimony could be permitted to change its express terms. The language of the contract itself shows that the parties to it did not contemplate that there should be any experimenting to determine whether or not merchantable brick could be burned by the process. That they could be so burned was treated iby the parties as a certainty. The only uncertainty contemplated by the parties was the cost of the fuel necessary to burn the brick so as to make them merchantable. This they treated as uncertain, and hence the contract only bound appellee to pay the purchase price ($12,500.00) for the use of the process in the event that the fuel cost of burning merchantable brick should not exceed-fifty cents per thousand.
Appellee, by its complaint and evidence, and its prayer for instruction, has sought to hold the appellant liable for its negligent failure to burn the brick. The appellee’s prayer for instruction was predicated upon the issue of negligence raised by the pleadings and it correctly declared the law applicable to the evidence adduced on that issue. The instruction, among other things, as to the measure of damages, told the jury that if appellant negligently cut off the supply of oil and turned out the fires before the kilns were burned and the kilns were thereby ruined so that the brick were worthless, then their verdict should be for the plaintiff for the amount of damage which the evidence showed that the appellee had sustained.
Counsel for appellant urge that this portion of the instruction fixed an erroneous measure of damages. The instruction told the jury that if they found in favor of the áppellee on the issue of negligence their verdict should be for the amount of damage which the evidence showed that the appellee had sustained. There was evidence tending to prove that appellee lost by reason of the failure to burn the kilns a total of 1237 thousand brick; that the minimum price for merchantable brick was $6.00 per thousand; that these brick which were not successfully burned by the process were worthless — a total loss.. If this is true, the only rule that would allow appellee compensation for the damage it had sustained for the violation of the contract would be to permit appellee to recover the value of merchantable brick on the number of brick lost by appellant’s failure to burn. It will be seen from this that the jury might have returned a verdict for $7,422. Their verdict for the loss of the brick was $6,900, $522 less than the actual loss according to the testimony adduced on behalf of the appellee. The instruction was correct in fixing the measure of damages at the “loss which appellee had sustained. ”
Appellant contends that the instruction permitted the jury to give appellee damages not only for the material and money expended by it, but also for the increased value of the manufactured brick. Under the contract appellee was to pay for all the labor and material furnished, and there was testimony which would at least warrant the finding by the jury that appellee had performed its contract in this as well as in other respects. The jury having so found, appellee was entitled, under the law and the evidence, to have the appellant perform its contract by the burning of merchantable brick. In other words, the jury were warranted in finding that if appellant had performed the contract on its part then appellee would have had on hand merchantable brick manufactured at its expense, which, on the local market, were worth more than the amount of the verdict returned by the jury. The total loss of this brick having been caused by the negligence of appellant, as the jury found, it was liable for the value of the brick so lost. Merely remunerating the appellee for the amount it had expended, for material and labor in preparing and burning the brick would not compensate it for its loss under the contract. Appellee, under the contract, was entitled to be compensated to the extent of the value of the number of merchantable brick which it lost by reason of the failure on the part of appellant to comply with its contract.
It follows from what we have said that the verdict was not excessive, and the court did not err in refusing prayers for instructions on the part of appellant which were not in harmony with the construction which the trial court and this court has placed upon the contract.
It was conceded by the parties that the appellee had in its possession personal property of the appellant of the value of $2,640.00. The jury, under the court’s direction, reduced the verdict in favor of the appellee, by this amount and returned a verdict for the balance, for which judgment was entered.
The judgment is correct, and it is therefore affirmed.