■The Court, Gilpin C. J.,
charged the jury, that the calculations of counsel in such a case were not evidence, and so far as their verdict should depend on any such method of determining the result of their deliberations upon it,.the jury-should make them for themselves after properly considering and weighing all the evidence before them in the case. The testimony of the witnesses as to the quantity of material, or linen twenty-two inches wide which it would require to make a knapsack according to United
States regulation standard at that time, was conflicting and contradictory in its character, and if reconcilable at all, it could only be done so far as the evidence goes, in some degree perhaps, upon the ground that there were two patterns of the regulations referred to, as a change, it was stated, had been introduced in the standard about the time the agreement was entered into between the parties, increasing the size of it slightly, to the former of which some of them may have referred, whilst the others may have referred to the latter when speaking in relation to that matter. But in accordance with the request of the counsel for the defendant, the court would say to them that so far as that might be involved or concerned as matter of importance in the consideration of the case by them, if there was such a change made in the standard, and the plaintiff after the making of the agreement required the work to be done according to the new and enlarged pattern or standard, he would not be entitled under the agreement to demand of the defendant more knapsacks than could with the exercise of reasonable and ordinary skill, care and prudence have been made out of the material furnished by him according to that standard or pattern. It might not be easy or practicable perhaps, in the light of the evidence, to determine with certainty the precise quantity of linen twenty-two inches in width, which was necessary to make a. knapsack according to the new standard spoken of by the witnesses for the defendant, since they varied in their estimates from two yards twelve inches to two yards sixteen inches ; but which one of the witnesses for the plaintiff estimated at two yards and a quarter, and others at two yards and ten inches, and who said it had been reduced to a mathematical certainty by the practical experience of large makers of them during the present war, that the latter quantity was sufficient to make one. The delivery of the material by the plaintiff" to the defendant for the purpose agreed on between them, constitutes what is termed in law a bailment, and in regard to the degree of skill which the plaintiff had a right under the agreement to
expect and require of the defendant in the cutting and making of the articles in question in order to prevent any unnecessary waste of the material furnished by him, the general principle and rule of law is that in all such cases where skill is required, it is to be understood to mean ordinary skill in the particular business or employment which the party undertakes, or in which he is engaged, for he is not presumed to engage for extraordinary skill which may belong to few men only in his business or employment, or for extraordinary endowments, acquirements, or qualifications to fit him in the highest degree for it. Reasonable skill therefore constitutes the measure of his engagement and responsibility in regard to the work undertaken by him, unless he has professed to the highest degree of skill in regard to it and expressly engaged to do it in the best manner. It is also a well settled principle of law that where the particular business or employment or work to be done is such as requires skill in the person who undertakes it, if in such a case a party is employed to undertake it who is known to the party employing him not to possess any skill in it, or that it is not and never has been his particular art, business or employment, and that he makes no pretensions to skill in it, and the employer with full notice or knowledge of that fact, trusts him with- the undertalcing, the party so employed is bound only for a reasonable exercise of the skill which he possesses, or the judgment which he can employ in it; and if any loss ensues from his want of due skill in it, he is not in law chargeable with it, or liable for it.
The jury had heard the agreement and the terms of it as detailed in the evidence, and 'it would be for them to consider and determine whether the defendant specially or expressly agreed to make and deliver to the plaintiff out of the material to be furnished by him, all or as many knapsacks as the most experienced, skillful and expert maker could have made out of it, for if there was such a special agreement on his part, and the jury were further satisfied that be had not done that, he of course, had failed
to perform such an agreement on his part, and the plaintiff would be entitled to recover; or if the jury should be satisfied from the evidence that he did not specially agree to cut and make it into knapsacks with such extraordinary skill and care as had just been mentioned, but that his agreement and undertaking was to make out of it and deliver to the plaintiff fifty thousand, at least, and as many more as it would make, allowing two yards and a quarter of the stuff’ to be furnished by the plaintiff to be sufficient to make one, and were also satisfied that the material afterward furnished by the plaintiff for the purpose, was sufficient at that rate, to make fifty thousand, at least, then he had tailed to perform such agreement, and the plaintiff would be entitled to recover, for there was no dispute about the fact that he had not made and furnished fifty thousand, at least. But if, on the contrary, they should believe from all the evidence before them, that no such agreement was entered into between the parties, as has just been stated, but that the agreement simply was that the defendant would make and deliver to the plaintiff out of the linen to be furnished by the latter for the purpose, fifty thousand knapsacks, at least, and as many more as it would make, without being bound to make every two yards and a quarter, or any other specific measure or quantity of it into one, and that the plaintiff knew at the time when such agreement was entered into, that the defendant had never before been engaged in the cutting and maldng of knapsacks, and did not possess, or pretend to skill in that particular business or employment, and that the defendant cut and made them with such reasonable skill as he possessed in the art or business of maldng them, and with the same care and diligence to save in the material and avoid any unnecessary waste of it in the cutting and making of them, which he would have applied to the undertaldng had he been making them for his own use and benefit alone under ■ such a contract with the government, and supplying the material himself, and made and delivered in good faith to the plaintiff, all the knapsacks he could make out of the
material furnished him, to the best of his skill and ability, then the plaintiff would not be entitled to recover, and their verdict should be for the defendant.
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■The Court, Gilpin C. J.,
charged the jury, that the calculations of counsel in such a case were not evidence, and so far as their verdict should depend on any such method of determining the result of their deliberations upon it,.the jury-should make them for themselves after properly considering and weighing all the evidence before them in the case. The testimony of the witnesses as to the quantity of material, or linen twenty-two inches wide which it would require to make a knapsack according to United
States regulation standard at that time, was conflicting and contradictory in its character, and if reconcilable at all, it could only be done so far as the evidence goes, in some degree perhaps, upon the ground that there were two patterns of the regulations referred to, as a change, it was stated, had been introduced in the standard about the time the agreement was entered into between the parties, increasing the size of it slightly, to the former of which some of them may have referred, whilst the others may have referred to the latter when speaking in relation to that matter. But in accordance with the request of the counsel for the defendant, the court would say to them that so far as that might be involved or concerned as matter of importance in the consideration of the case by them, if there was such a change made in the standard, and the plaintiff after the making of the agreement required the work to be done according to the new and enlarged pattern or standard, he would not be entitled under the agreement to demand of the defendant more knapsacks than could with the exercise of reasonable and ordinary skill, care and prudence have been made out of the material furnished by him according to that standard or pattern. It might not be easy or practicable perhaps, in the light of the evidence, to determine with certainty the precise quantity of linen twenty-two inches in width, which was necessary to make a. knapsack according to the new standard spoken of by the witnesses for the defendant, since they varied in their estimates from two yards twelve inches to two yards sixteen inches ; but which one of the witnesses for the plaintiff estimated at two yards and a quarter, and others at two yards and ten inches, and who said it had been reduced to a mathematical certainty by the practical experience of large makers of them during the present war, that the latter quantity was sufficient to make one. The delivery of the material by the plaintiff" to the defendant for the purpose agreed on between them, constitutes what is termed in law a bailment, and in regard to the degree of skill which the plaintiff had a right under the agreement to
expect and require of the defendant in the cutting and making of the articles in question in order to prevent any unnecessary waste of the material furnished by him, the general principle and rule of law is that in all such cases where skill is required, it is to be understood to mean ordinary skill in the particular business or employment which the party undertakes, or in which he is engaged, for he is not presumed to engage for extraordinary skill which may belong to few men only in his business or employment, or for extraordinary endowments, acquirements, or qualifications to fit him in the highest degree for it. Reasonable skill therefore constitutes the measure of his engagement and responsibility in regard to the work undertaken by him, unless he has professed to the highest degree of skill in regard to it and expressly engaged to do it in the best manner. It is also a well settled principle of law that where the particular business or employment or work to be done is such as requires skill in the person who undertakes it, if in such a case a party is employed to undertake it who is known to the party employing him not to possess any skill in it, or that it is not and never has been his particular art, business or employment, and that he makes no pretensions to skill in it, and the employer with full notice or knowledge of that fact, trusts him with- the undertalcing, the party so employed is bound only for a reasonable exercise of the skill which he possesses, or the judgment which he can employ in it; and if any loss ensues from his want of due skill in it, he is not in law chargeable with it, or liable for it.
The jury had heard the agreement and the terms of it as detailed in the evidence, and 'it would be for them to consider and determine whether the defendant specially or expressly agreed to make and deliver to the plaintiff out of the material to be furnished by him, all or as many knapsacks as the most experienced, skillful and expert maker could have made out of it, for if there was such a special agreement on his part, and the jury were further satisfied that be had not done that, he of course, had failed
to perform such an agreement on his part, and the plaintiff would be entitled to recover; or if the jury should be satisfied from the evidence that he did not specially agree to cut and make it into knapsacks with such extraordinary skill and care as had just been mentioned, but that his agreement and undertaking was to make out of it and deliver to the plaintiff fifty thousand, at least, and as many more as it would make, allowing two yards and a quarter of the stuff’ to be furnished by the plaintiff to be sufficient to make one, and were also satisfied that the material afterward furnished by the plaintiff for the purpose, was sufficient at that rate, to make fifty thousand, at least, then he had tailed to perform such agreement, and the plaintiff would be entitled to recover, for there was no dispute about the fact that he had not made and furnished fifty thousand, at least. But if, on the contrary, they should believe from all the evidence before them, that no such agreement was entered into between the parties, as has just been stated, but that the agreement simply was that the defendant would make and deliver to the plaintiff out of the linen to be furnished by the latter for the purpose, fifty thousand knapsacks, at least, and as many more as it would make, without being bound to make every two yards and a quarter, or any other specific measure or quantity of it into one, and that the plaintiff knew at the time when such agreement was entered into, that the defendant had never before been engaged in the cutting and maldng of knapsacks, and did not possess, or pretend to skill in that particular business or employment, and that the defendant cut and made them with such reasonable skill as he possessed in the art or business of maldng them, and with the same care and diligence to save in the material and avoid any unnecessary waste of it in the cutting and making of them, which he would have applied to the undertaldng had he been making them for his own use and benefit alone under ■ such a contract with the government, and supplying the material himself, and made and delivered in good faith to the plaintiff, all the knapsacks he could make out of the
material furnished him, to the best of his skill and ability, then the plaintiff would not be entitled to recover, and their verdict should be for the defendant. If, however, the jury should find that although such was the agreement, understanding and intention of the parties, and that such was the undertaking and engagement of the defendant, he had nevertheless not complied with and performed it in good faith with such reasonable skill and to the best of the ability which he possessed in that ldnd of employment, and with that ordinary degree of prudence, care and diligence which had just been defined by him, it would be their duty to render a verdict against him and in favor of the plaintiff. And if the verdict should be in favor of the plaintiff in either of the several aspects in which he had thus presented the case for their consideration, it should be for the difference between what would have been the total cost to the plaintiff of such additional knapsacks, as it should be found that the defendant ought to have made and delivered, but failed to make and deliver out of the material actually furnished him by the plaintiff for the purpose, and the amount he would have received for them under his contract price with the government, the evidence as to which they had before them; and for that purpose it would also be their duty to ascertain from all the evidence before them what was the actual quantity of the linen in question which was furnished under the agreement by the plaintiff to the defendant.
The defendant had a verdict.