Mo'ore, Judge,
delivered tbe opinion of tbe Court:
This was an action of assv/mpsit. The declaration contained the common counts in the usual form, with specifications filed, and two special counts. The defendants demurred to the declaration, and to each count thereof. It is argued, that the court erred in overruling the demurrer as to the special counts. No error is assigned as to the common counts. The first special count is objected to on the ground, “that the jury was called to pass upon the title to the lands, and also to pass upon the acts of of the stockholders.
The first special count alleges substantially, that on the — day of —, 1871,.the plaintiffs made and entered into a contract with the defendant, by which plaintiffs promised and agreed to cut and saw for, and deliver to defendant, a large quantity of lumber; the timber for said 1 umber, by the terms of said contract, was to be cut from a large tract of land, then and there claimed and represented by the defendant to the plaintiffs to be property of the defendant;” and that in consideration of the said promises and undertakings of the plaintiffs, the defendant, by the terms of said contract, then and there promised and agreed to pay to the plaintiffs for their services in cutting, sawing and delivering said lumber, the sum of $9.00 per thousand feet, mill count, for all lumber so cut, sawed and delivered,” &c.; that the plaintiffs, under and by virtue of the contract, entered upon the said land and cut therefrom and delivered to the said defendant, a lai’ge quantity of logs, and so continued to do up to and until the 23d day of July, 1872; and that upon the said 23d day of July, 1872, the contract aforesaid was, by mutual consent of the plaintiffs and the defendant, rescinded ; and that thereupon, to-wit, on the 23d day of Juty, 1872, the plaintiffs and defendant made and entered into a certain other contract, by which the defendant then and there “agreed and promised, to pay to the plaintiffs for all logs then cut, but not delivered, by the plaintiffs under the first [265]*265mentioned contract, at the rate of $5.00 per thousand feet, bank scale; the said logs to be delivered by the plaintiffs in the boom, — meaning and intending thereby, the boom situated in Elk river about three miles above its mouth ; and that the said defendant, by the said last mentioned contract, further promised and agreed to advance to the plaintiffs, on said last mentioned contract, the sum of $3,000.00, of which $1,000.00 was to be paid in one month; $1,000.00 was to be paid in two months? and $1,000.00, was to be paid in three months from the date of said contract; and further to pay to the said plaintiffs the balance, that might be due upon said contract, last mentioned, at one, two, and three months after the last of the said logs, so cut, should be delivered in the boom aforesaid.” “And the plaintiffs further say, that the said defendant, by the said last mentioned contract, further agreed and promised the plaintiffs, that they, the plaintiffs, should have the privilege at their, the plaintiffs’, option, to cut other logs upon the said lands during the time, that the}, the plaintiffs, should be occupied in and about the driving and delivering, as aforesaid, of the said logs, then already cut, as aforesaid, and that it, the defendant, would take and receive from the plaintiffs all logs, so cut, as last aforesaid, and pay the plaintiffs therefor at the same rate, and in like manner, as for the logs then already cut, as aforesaid.
“And the plaintiffs aver, that at the time of the making of the said last mentioned contract, to-wit, on the said 23d day of July, 1872, they, the said plaintiffs, then had cut and upon the said land a large quantity of logs, to-wit: 1,500,000 feet, bank scale; and that afterwards to-wit, between the said 23d day of July, 1872, and the -day of January, 1873, they, the said plaintiffs, delivered to the defendant, in the boom aforesaid, according to the terms of the said last mentioned contract, 1,200,000 "feet, bank scale, of said logs, leaving undelivered 300,000 feet, bank scale, of said logs. And the plaintiffs aver, that at the time of the making of said two [266]*266contracts, above mentioned, the defendant had not, and has never since had, any right, title or claim, whatever to the said tract of land, or to the timber thereon; and that they, the said plaintiffs, were prevented from delivering the residue of said logs by no act or default of theirs, but solely by reason of the defendant, having no right or title to said land and timber, and of a certain order of injunction, awarded by the circuit court of the said county of Kanawha, in a certain suit in chancery, lately pending therein, in which William H. Edwards and others were plaintiffs, and H. Broekerhoof and others weie defendants, which said order of injunction ivas issued on the 13th day of January, 1873, and enjoined and inhibited the plaintiffs, and all other defendants to said suit, from cutting any timber and from removing any timber already cut, on and from the lands aforesaid; and the plaintiffs aver, that the said order of injunction was granted for and on account of the acts and default of the defendant and the persons owning its stock.
“And the plaintiffs further say, that during the time they were delivering the said logs, as aforesaid, to-wit, between the said 23d day of July, 1872, and the said — day of January, 1873, they, the said plaintiffs, under and by virtue of the said contract last aforesaid, cut upon the said lands, and delivered to the defendant in the boom aforesaid, a large quantity of certain other logs, to-wit, 500,000 feet, bank scale; and so the plaintiffs say, that by the terms of the said last mentioned contract, and by reason of the delivery by the plaintiffs to the defendant, as aforesaid, of the said logs already cut, to-wit, 1,200,000 feet, bank scale, thereof, and of the cutting and delivery of said other logs, as aforesaid, to-wit, 500,000 feet, bank scale, thereof, the defendant heretofore, to-wit, on the 1st day of March, 1874, became and was indebted to the plaintiffs in the sum of $S,500.00; and being so indebted, in consideration thereof, then and there promised to pay the plaintiffs the said sum of $8,500.00 upon request, nevertheless the defendant, [267]*267although thereunto often requested, has not paid to the plaintiffs, or to either of them, the said sum of money, or any part thereof, but the whole and every part thereof still remains duo and unpaid, to the damage of the plaintiffs, §10,000.00.”
As stated by the counsel for the plaintiffs briefly, this count alleges: 1st, the contract of 1871, by which the plaintiffs agreed to cut and saw a largo quantity of lumber from a tract of land, claimed tobe owned by the defendant, and the price, agreed to be paid to the plaintiffs by the defendant; 2d. the modification of the original contract by a new contract of July 23, 1872, by which the plaintiffs agreed to deliver into theboomthe logs, already cut, at the compensation of §5.00 per thousand feet by the defendant;'3d. that the defendant also agreed, that the plaintiffs should have the privilege of cutting any additional logs, on the same land, while they were occupied in driving and delivering the logs, already cut, and it would receive them, and pay for them as for the other logs; 4th. the delivery by the plaintiffs of 1,200,000 feet of the logs, cut on the original contract, and 500;000 feet, cut under the new contract, into the boom; 5th. the assumpsit by the defendant to pay the contract price for the logs, so delivered, and its failure to pay the same.
áyl]a)lus j
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Mo'ore, Judge,
delivered tbe opinion of tbe Court:
This was an action of assv/mpsit. The declaration contained the common counts in the usual form, with specifications filed, and two special counts. The defendants demurred to the declaration, and to each count thereof. It is argued, that the court erred in overruling the demurrer as to the special counts. No error is assigned as to the common counts. The first special count is objected to on the ground, “that the jury was called to pass upon the title to the lands, and also to pass upon the acts of of the stockholders.
The first special count alleges substantially, that on the — day of —, 1871,.the plaintiffs made and entered into a contract with the defendant, by which plaintiffs promised and agreed to cut and saw for, and deliver to defendant, a large quantity of lumber; the timber for said 1 umber, by the terms of said contract, was to be cut from a large tract of land, then and there claimed and represented by the defendant to the plaintiffs to be property of the defendant;” and that in consideration of the said promises and undertakings of the plaintiffs, the defendant, by the terms of said contract, then and there promised and agreed to pay to the plaintiffs for their services in cutting, sawing and delivering said lumber, the sum of $9.00 per thousand feet, mill count, for all lumber so cut, sawed and delivered,” &c.; that the plaintiffs, under and by virtue of the contract, entered upon the said land and cut therefrom and delivered to the said defendant, a lai’ge quantity of logs, and so continued to do up to and until the 23d day of July, 1872; and that upon the said 23d day of July, 1872, the contract aforesaid was, by mutual consent of the plaintiffs and the defendant, rescinded ; and that thereupon, to-wit, on the 23d day of Juty, 1872, the plaintiffs and defendant made and entered into a certain other contract, by which the defendant then and there “agreed and promised, to pay to the plaintiffs for all logs then cut, but not delivered, by the plaintiffs under the first [265]*265mentioned contract, at the rate of $5.00 per thousand feet, bank scale; the said logs to be delivered by the plaintiffs in the boom, — meaning and intending thereby, the boom situated in Elk river about three miles above its mouth ; and that the said defendant, by the said last mentioned contract, further promised and agreed to advance to the plaintiffs, on said last mentioned contract, the sum of $3,000.00, of which $1,000.00 was to be paid in one month; $1,000.00 was to be paid in two months? and $1,000.00, was to be paid in three months from the date of said contract; and further to pay to the said plaintiffs the balance, that might be due upon said contract, last mentioned, at one, two, and three months after the last of the said logs, so cut, should be delivered in the boom aforesaid.” “And the plaintiffs further say, that the said defendant, by the said last mentioned contract, further agreed and promised the plaintiffs, that they, the plaintiffs, should have the privilege at their, the plaintiffs’, option, to cut other logs upon the said lands during the time, that the}, the plaintiffs, should be occupied in and about the driving and delivering, as aforesaid, of the said logs, then already cut, as aforesaid, and that it, the defendant, would take and receive from the plaintiffs all logs, so cut, as last aforesaid, and pay the plaintiffs therefor at the same rate, and in like manner, as for the logs then already cut, as aforesaid.
“And the plaintiffs aver, that at the time of the making of the said last mentioned contract, to-wit, on the said 23d day of July, 1872, they, the said plaintiffs, then had cut and upon the said land a large quantity of logs, to-wit: 1,500,000 feet, bank scale; and that afterwards to-wit, between the said 23d day of July, 1872, and the -day of January, 1873, they, the said plaintiffs, delivered to the defendant, in the boom aforesaid, according to the terms of the said last mentioned contract, 1,200,000 "feet, bank scale, of said logs, leaving undelivered 300,000 feet, bank scale, of said logs. And the plaintiffs aver, that at the time of the making of said two [266]*266contracts, above mentioned, the defendant had not, and has never since had, any right, title or claim, whatever to the said tract of land, or to the timber thereon; and that they, the said plaintiffs, were prevented from delivering the residue of said logs by no act or default of theirs, but solely by reason of the defendant, having no right or title to said land and timber, and of a certain order of injunction, awarded by the circuit court of the said county of Kanawha, in a certain suit in chancery, lately pending therein, in which William H. Edwards and others were plaintiffs, and H. Broekerhoof and others weie defendants, which said order of injunction ivas issued on the 13th day of January, 1873, and enjoined and inhibited the plaintiffs, and all other defendants to said suit, from cutting any timber and from removing any timber already cut, on and from the lands aforesaid; and the plaintiffs aver, that the said order of injunction was granted for and on account of the acts and default of the defendant and the persons owning its stock.
“And the plaintiffs further say, that during the time they were delivering the said logs, as aforesaid, to-wit, between the said 23d day of July, 1872, and the said — day of January, 1873, they, the said plaintiffs, under and by virtue of the said contract last aforesaid, cut upon the said lands, and delivered to the defendant in the boom aforesaid, a large quantity of certain other logs, to-wit, 500,000 feet, bank scale; and so the plaintiffs say, that by the terms of the said last mentioned contract, and by reason of the delivery by the plaintiffs to the defendant, as aforesaid, of the said logs already cut, to-wit, 1,200,000 feet, bank scale, thereof, and of the cutting and delivery of said other logs, as aforesaid, to-wit, 500,000 feet, bank scale, thereof, the defendant heretofore, to-wit, on the 1st day of March, 1874, became and was indebted to the plaintiffs in the sum of $S,500.00; and being so indebted, in consideration thereof, then and there promised to pay the plaintiffs the said sum of $8,500.00 upon request, nevertheless the defendant, [267]*267although thereunto often requested, has not paid to the plaintiffs, or to either of them, the said sum of money, or any part thereof, but the whole and every part thereof still remains duo and unpaid, to the damage of the plaintiffs, §10,000.00.”
As stated by the counsel for the plaintiffs briefly, this count alleges: 1st, the contract of 1871, by which the plaintiffs agreed to cut and saw a largo quantity of lumber from a tract of land, claimed tobe owned by the defendant, and the price, agreed to be paid to the plaintiffs by the defendant; 2d. the modification of the original contract by a new contract of July 23, 1872, by which the plaintiffs agreed to deliver into theboomthe logs, already cut, at the compensation of §5.00 per thousand feet by the defendant;'3d. that the defendant also agreed, that the plaintiffs should have the privilege of cutting any additional logs, on the same land, while they were occupied in driving and delivering the logs, already cut, and it would receive them, and pay for them as for the other logs; 4th. the delivery by the plaintiffs of 1,200,000 feet of the logs, cut on the original contract, and 500;000 feet, cut under the new contract, into the boom; 5th. the assumpsit by the defendant to pay the contract price for the logs, so delivered, and its failure to pay the same.
áyl]a)lus j It is well said, that “in general, whatever circumstances are necessary to constitute the cause of complaint, or the ground of defense, must be stated in the pleadings, and all beyond is surplusage.” Chitt. PI. (16th ed.) 236. “The statement of immaterial, or irrelevant matter, or allegations, is not only censured, as creating unnecessary expense, but also frequently affording an advantage to the opposite party, either by affording him matter of objection, on the ground of variance, or as rendering it incumbent on the party pleading, to adduce more evidence, than would otherwise have been necessary. It is therefore of the greatest importance in pleading, to avoid any unnecessary statement of facts, as well [268]*268as prolixity in the statement of those, which may be necessary.” Id. 252.
“If however the matter, unnecessarily stated, be wholly foreign and irrelevant to the cause, so that no allegation whatever on the subject was necessary, it will be rejected as surplusage, and it need not be proved; nor will it vitiate even on a, special demurrer, it being a maxim, that utile per inutile non vitiatur.” Id. 252. See also Sike v. Becker, 1 Denio. 568; Burton & Co. v. Hansford, 11 W. Va. 474.
Ryiiaims 2 Applying these general and common rules to this count, it seems, that the allegations, as to the defendant not having title to the land, were wholly unnecessary. It was a circumstance, not necessary to constitute the cause of complaint, whether the defendant had title to the land, or not, as that count shows the cause of action ti) be the breach, of the contract on the part of the defendant, merely in refusing to pay the plaintiffs'for the logs actually delivered to it per contract by the plaintiffs. The count is sufficient in all essentials without the allegations as to title, so that judgment according to law and the very right of the case could be given, and those allegations being mere surplusage, no proof was ftecessary as to title, and therefore no harm could have been done the defendant.
The second special count is subject to like criticism as the first, in alleging more, than was necessary to constitute the cause of complaint. The real cause of complaint, in that count, is the claim, it makes for the three hundred thousand feet of logs, which the plaintiffs cut, but wore prevented from delivering, into the boom, by no act or default of theirs, but by reason of a eer-tian order of injunction, awarded by the circuit court of Kanawha county, in a certain suit in chancery, therein pending, which order of injunction, the plaintiffs aver, was granted solely for and on account of the acts and default of the defendant, and of the persons owning the stock thereof, and that they had lost the profits, which [269]*269would have accrued to them from the delivery of same, which, they aver, would have amounted to the sum of $1,000.00
syimims r Now it is plain, that ii it be true, that the plaintiffs did cut the alleged three hundred thousand feet, bank scale, of logs, and were prevented from delivering the same by reason of the injunction being awarded, as alleged, on account of the acts of the defendant, then the plaintiffs are entitled to recover the contract price of the logs, so cut and not delivered, lews the expense or cost necessary to make the delivery; this I understand to be the direct profit, contemplated as the measure of damages, in such cases; and this view accords with the doctrine, recognized in Masterton v. Mayor &e., of Brooklyn, 7 Hill 61 where it was held, “that the measure of damages, in respect to so much of the contract, as remained wholly unperformed, at the time of the breach was the difference between what the performance would have cost the plaintiffs, and the price, which the defendant had agreed to pay.”
SyllabUK 3 Such seems to be the reasonable and correct doctrine, and was .so recognized by the Supreme Court of the United States, in the case of Philadelphia, Wilmington & Baltimore R. R. Co. v. Howard, 13 How. (U. S.) 307.
Therefore, such being the true measure of damages in such cases, it is clear, that all other allegations, as to the large sums of money expended in purchasing horses, mules and wagons, and employing laborers, cannot be considered in any other light than mere surplusage, and under the principles, enunciated relative to the first special count, should be disregarded ; and no evidence could be required thereon.
The demurrer to the declaration and each count thereof was properly overruled.
syllabus a The defendant assigns as error, that, “ upon the trial of the cause, the court allowed plaintiffs to- place in evi deuce before the jury a part of the contract sued on, which was taken from the books of defendant, and not the [270]*270entire contract, although the entire contract was present in court.” This supposed error iorms the ground for the defendant’s first bill of exceptions. For a proper understanding of the point, raised by that assignment of error, it will be well to set out that bill in full, which is as follows:
“Be it remembered, That on the trial of this cause, and as the first evidence offered by the plaintiffs, to prove the issues on their part, the plaintiffs offered in evidence a copy of a resolution of the board of directors of the defendants, passed July 23, 1872, attested by its secretary, in the words and figures following, to-wit:
“‘Resolutions passed ata meeting of the Elk River Navigation Company, held in Charleston, July 23,1872 :
“ ‘Resolution.
“‘Resolved, That the contract of this company with Patton & Shaver be rescinded, and that when rescinded, we agree to pay to them for the logs already cut, at the rate of five dollars ($5.00) per M, bank scale, delivered in the boom, the company to advance to them $3,000.00 in manner following: $1,000.00 in one (1) month; $1,000.00 in two (2) months: $1,000.00 in three (3) months from this date; the balance to be paid at one (1), two (2), three (3) months after the last of the logs so cut have been delivered in the boom. It is further agreed that the said Patton & Shaver shall have the privilege, at their option, to cut other logs in the vicinity and within the boundary of the contract during the time, that they shall be occupied in and about the driving of the logs already cut, and which logs shall be taken and paid for by the company in like manner.
“ ‘In compliance with the above resolution, the terms of resolution are recorded and accepted by us on receipt, of date July 24,1872:
Amount draft on H. Brokerhoof, Treasurer, 1 month, $1,000 00
Amount “ ' “ “ “ 2 months, 1,000 00
Amount “ “ “ 3 months, 1,000 00
$3,000 00
“ ‘Attest: P. H. Galug-heb, Secretary.
[271]*271“ ‘Which was admitted by the defendants to be a true copy of the resolution, but not admitted to contain whole proceedings outlie books of the defendant of date in reference to the contraed, and which the defendant had agreed, before trial, should be used the same, as the original might; and the plaintiffs, in connection with the offer of said resolution, proved, that it was delivered to them by the secretary • of the defendant, as and for the contract between them; and thereupon the defendant objected to said resolution b.eing given in evidence to the jury, upon tlici- ground that it contained only part of the contract between the parties, as it offered to show by its original books, produced in court, and which it offered to prove, which, defendant claimed, contained the full contract between the parties, and asked the court to require the plaintiffs to give to the jury, as part of their evidence, in connection with said resolution, the following matters in writing, on said book on pages forty-six and forty-seven:
“ ‘Extract from Booh.
c [Pages 46 and 47.]
‘ Directors’ MeetiNg,
Elk Eiver NavigatioN Company,
July 23, 1872.
“ ‘Messrs. Patton & Shaver then presented two propositions, number one and two, as follows :
“ ‘Edward Land CoMpany :
“‘Gentlemen: According to your request, we submit to you the following propositions:
. “ ‘1st. That the company build, or furnish the means necessary to build, a circular-saw mill on our lot on the Elk river. We will have the property well insured for your benefit, or you can take any measures to secure yourselves you may think proper. We will pay twelve per cent on the money until the mill is paid for.
“‘2d. That if the company think it is not to their [272]*272advantage to build us this mill, that they will cancel the contract by paying us the amount we have expended, $5,500.00, with such allowance for our services (almost a year) as they may think just.
“ ‘Very respectfully,
“(Sign ed.) ‘ PattoN & Sha ver.’
“ ‘Resolved. That the further consideration of Messrs. Patton & Shaver’s proposition be ¡rostponed for the present.
“‘Passed.
“ ‘After recess, met at If o’clock p. M,, and
“ ‘Resolved, That the President of this Company be and is hereby authorized and instructed to purchase any stock procurable of this company, and sufficient to reduce the number of shares to one thousand, and hold the same for this company, paying for the same by draft on the treasurer of this company, at one, two, three, four, or six months, notifying the treasurer of the purchase and terms of same.
“ ‘ Carried.
“‘Directors’MeetiNG, Elk River Nav. Co., \
July 23, 1872,/
“ ‘Resolved. That the contract of this company with Messrs. Patton & Shaver be rescinded, and that when rescinded, we agree to pay to them for the Jogs already cut, at the rate of ($5) five dollars per (M) thousand feet, (board measure) bank scale, delivered in the boom, the company to advance to them ($3,000.00) three thousand dollars in the following manner: $1,000.00 in one month; $1,000.00 in (2) two months, and $1,000.00 in three months from this date, the balance tobe paid at one, two and three months after the last of the logs so cut have been delivered in the boom.
■ “ ‘It is further agreed that the said Patton & Shaver shall have the privilege, at their option, to cut other logs in the same vicinity, and within the boundaries of [273]*273said contract during the time, that they shall be occupied in and about driving the logs already out, and which logs shall be taken and paid for by the company in like ner.
“ ‘ClIAKEESTON, WEST Ya., 1 - July 24, 1872. f
‘‘‘To the President of the PAh River Nanigtdion Go.:
“ ‘The resolution concerning the rescinding of our log contract with you, passed by your company, July 23, ’72, has been submitted to us, and we agree to consent to the same as per said resolution.
(Signed) “ ‘Geo. W. PattoN.
“‘J. E. Shavee.’
“But the court being of opinion that the evidence offered by the plaintiffs was at this stage of the case competent to go to the jury by itself, and that the defendant could prove its version of the contract when it came to give its evidence to the jury, overruled the defendant’s objection, and permitted the plaintiff, to give the said resolution in evidence to the jury in connection with the proof aforesaid. To which opinion and ruling of the court, the defendant excepts, and prays that these, its exceptions, may be signed, sealed and saved to it, which is done.
“Edw. B1 Ketght. [Seal.]/’
Hence it appears from this bill of exceptions, that, the defendant’s objection is not to the admissibility of the copy of tin; resolution, offered by the plaintiffs, and which was considered by the plaintiffs as the evidence of the modified contract, relied on by them to sustain their action; but its objection to the ruling of the court is, that the court refused to compel the plaintiffs, to introduce from the records of the proceedings of the de-fen dant’sboard of directors other resolutions and proceedings, as evidence in behalf of the plaintiffs.
[274]*274Syllabus e1 n I ^'T of no rule of practice, under which the court have the power to compel the plaintiffs to in-trodnce any evidence, to sustain the issue on their part. If the plaintiffs do not'introduce any evidence to prove the contract, or if they' introduce evidence, not admissible by itself, and fail to follow it with other evidence, to make it admissible, it is to their own folly and loss, and not to the injury of the defendant.
The court in this instance simply held, what it properly had a right to do, that the evidence offered by the plaintiffs, at that stage of the cause, was competent to go before the jury by itself, and that the defendant could prove its version of the contract, when it came to give its evidence to the jury. Had the resolution been inadmissible by itself, which the court properly did not think it was, and the court had allowed it to be introduced at that stage of the case, to be followed by other evidence to make it admissible, and the plaintiffs had failed to so follow it, the court would have instructed the jury to disregard it, Alderson v. Miller, 15 Gratt. 279; but would not have compelled the plaintiffs to have introduced the other evidence; and for the stronger reason it properly in this case refused to compel the plaintiffs to introduce the matters, demanded by the defendant. And, as was said in argument, when reference is made to-those matters, it will be seen, they form no part of the contract.
syiiaims 5 ii The first paper, proposed to be offered, was mere propositions from plaintiffs, never accepted, nor rejected, by the defendant; the second was an authority from the defendant to its president, to purchase a portion of its capital stock; and the third was a copy of the same resolution, which the plaintiff had already offered as the contract sued on, with the addition of a memorandum of acceptance by the plaintiffs. But on the other hand had they been important, as matter of evidence, on behalf of the defendant, it was the proper party to have introduced them, and not the plaintiffs.
[275]*275The court did not err in that respect.
It appears from the defendant’s second bill of tion, that the defendant asked the court for the following instructions, after setting out the said resolution, showing the modified contract: “ If the jury believe from the evidence, that the time, in which the logs, in the contract mentioned, were to be delivered, was not specified in the contract, then the plaintiffs, Patton & Shaver, were obliged by said contract, to deliver said logs, and perform their part of said contract within a reasonable time; and what was a reasonable time, the jury must determine from the evidence in the case.’’ But the court refused to give the instruction.
syMnw r> iv gyl]al)llí, 6 There is nothing to show, whaf'was the original contract ; this bill of exceptions is silent, as to the original contract, and merely sets out the resolution, which refers to the original, declaring it rescinded, but in fact only modifying it, as to the price the company would pay the plaintiffs for logs, cut under the first contract, delivered in the boom, and giving the plaintiffs “ privilege, at their option, to cut other logs in the vicinity, and within the boundaries of the contract during the time, that they shall be occupied in and about the driving of the logs already cut, and which logs shall be taken and paid for in like manner.” Whether that contract was verbal or written, this bill of exceptions docs not show. What was the requirement of the contract, as to the time of delivery, and whether any evidence had been introduced, as to the time of delivery, does not appear from this bill of exceptions, nor from anything in the record, that it can be connected with. Yet it may bo possible, the original contract specified a time certain for'the delivery of the logs. In this state of the case, as presented to us by this bill of exceptions, I think we should follow the rule, laid down in Fitzhugh’s ex’r v. Fitzhugh, 11 Gratt. 308. In the absence of the facts we cannot undertake to decide, whether the court did right, or wrong, in refusing to give the instruction.
[276]*276It appears from the defendant’s third bill of excep-that after the said resolution, showing the modified contract, andalso the record of the chancery suit of Wm. H. Edwards et al. v. Brockerhoff, &c., showing the granting of the injunction, were given in evidence by the plaintiffs ; and it was further proved by them, that all of the defendants in said chancery suit, except Patton® & Shaver, and two others, were stockholders in said defendant ; and after the plaintiffs had introduced evidence on other matters not pertinent to the question now under consideration ; evidence was then introduced by the defendant, tending to prove, that after the injunction, granted in said suit, was served on the plaintiffs, on the 21st of January, 1873, and before the 31st of March, 1873, an agreement was entered into between all the parties litigant in said chancery suit, except Patton & Shaver, permitting Patton & Shaver to remove all logs, already cut by them under their contract with the defendant, but not permitting them to cut any other logs, and that plaintiffs were notified of such agreement prior to the 31st of March, 1873. The defendant then asked the court to give the two following instructions:
[No. 1.]
“If the jury from the evidence believe, that there was a written contract put in evidence before them, which was the basis of this action, then the plaintiffs were bound under the terms of their said contract with the defendant, to put all the logs, cut by them, into the boom, named in said contract in writing, and that they are limited in their recovery in this action to the logs, actually run into said boom, and cannot recovcrfor logs, cut by them and not so delivered in said boom.”
[No. 2.]
“If the jury from the evidence believe, that plaintiffs were enjoined from cutting, and removing logs already cut, by an injunction sued out in Kanawha circuit court, from [277]*27721st January to 31st of March, 1873, and that on and after 31st March, 1873, the injunction was so far modified by agreement between the litigants in the injunction that permission was then granted the plaintiffs to remove the logs, that then the plaintiffs were as much bound to deliver the logs, cut under the contract, into the boom, as though there had been no injunction.”
But the court refused to give said instructions to the jury, and gave to the jury in lieu thereof three instructions in writing, marked A, B and C, in the words and figures following, to-wit:
Instruction A.
“The jury are instructed, that the plaintiffs are entitled to recover the contract price for all logs, which, the jury believe from the evidence, were cut by the plaintiffs for the defendant under the contract, set out lit the declaration, and which were delivered by the plaintiffs into the boom, mentioned in the contract, after I he 23d day of July, 1872.”
Instruction B.
“If the jury find from the evidence, that the plaintiffs cut logs for the defendant, under the contract, set out in the declaration, which were not delivered into said boom, and that the plaintiffs were prevented * * * * from making such delivery by any act, or by the fault of the defendant, for the logs, so cut and not delivered, the plaintiffs are entitled to recover the difference between the contract price and the reasonable cost ot delivering such logs in said boom.”
Instruction 0.
“If the jury find from the evidence, that the plaintiffs cut logs for the defendant Tinder the contract, set out in the declaration, which were not delivered in the boom aforesaid,'and-that the failure to deliver the said logs resulted from the voluntary act or negligence' of the [278]*278plaintiffs, then tlie plaintiffs are not entitled to recover in this action for the logs, so cut and not; delivered.”
To which last named instructions the defendant took no exception.
To the opinion of the court, in refusing to give to the jury the said instructions, numbers one and two, the defendant excepts.
It is argued, that the court erred in refusing to give the instruction, numbers one and two.
syllabus 7 Syiiairas 8
As ^Ie ffnst instruction, it might well have been refused, because it is so imperfectly expressed, that its true import is not readily discernible, and would tend to mislead the jury. But, if free from that objection, the facts proven, as stated in this third bill of exceptions, shownthat the plaintiffs were not in fault, but that they wore prevented from delivering the logs into the boom ■by the acts and'-dofault of the defendant; thus bringing the case under the principles, laid down in Masterton v. Mayor of Brooklyn, and P. W. & B. R. R. Co. v. Howard, as to the true measure of damages. Sec also 2 Smith’s L. C. 7 Am. cd. 151. And again, the original contract is not set out in the bill of exceptions, the Appellate Court cannot assume, that the court below erred, in refusing to give the instruction, but must hold, that in this instruction, if it is capable of interpretation at all, there is such a mixture of fads with law, and which necessarily would demand the opinion of the court on both, as to necessitate the court to either refuse the instruction, so as not to infringe the powers of the jury, or to discriminate between the facts and law, which it is not bound to do.
The second instruction, asked for by the defendant, is objectionable. The defendant having by its own act and default prevented the plaintiffs from delivering the logs, it is absurd to say, that the law should compel the plaintiffs at any time to deliver them upon the mere agreement of the stockholders, without the consent or agreement of the plaintiffs, and that too, while the injunction [279]*279is still in force. Sucli is not the law. Upon the authorities, before cited, the plaintiffs were entitled to recover from the defendant for the logs, they were prevented from delivering by the acts and default of the defendant, at the contract price less the cost of delivering the logs into the boom.
The defendant did not except to the court giving the instructions A. B. and C.; and although it intimated in argument, that the giving of -those instructions was error,- the Appellate Court is not called upon to pronounce upon them. But if necessary to decide thereon, I would be free to say, that they'state the law correctly, governing this case, so far as the record presents the facts.
The defendant moved the court to sot aside the verdict, and award a new trial, which motion was overruled. No exceptions were taken to that'ruling of the court in that respect; and as the record does not disclose the facts .proven, on which the verdict was found, the Appellate Court must declare, that the record discloses no error, and that the judgment complained of should be affirmed with costs and damages according to law.
Tub other Judges Concurred.
Judgment Affirmed.