Heavilon v. Kramer

Frazer, J. It is argued that there was error below in overruling a demurrer to the first paragraph of the complaint, but we are not of that opinion. The other question before us is upon the motion for a new trial, which was overruled. "We think it should have been sustained, on account of erroneous instructions having been given to the jury, and for refusing instructions asked. The appellee was the owner and operator of a portable steam-saw-mill and claimed that the defendants had contracted with him to remove his mill to their land and saw at a certain price one thousand logs for them,to be furnished [245] by them during the summer and fall of 1865; that they failed to deliver the logs, whereby he was damaged, &c. The general denial .was pleaded. J. N. Sims, Ii. Y. Morrison, and T. H. Palmer; for appellants. J., Clayhangh and L. MeClurg, for appellee. As to the measure of damages, the court told the jury, that if the plaintiff had made out his case, he was “ entitled to recover the amount of profits he has proven he would have made on the sawing of the unfurnished logs if they had been furnished.” This is not, we think, the rule of damages which the law provides in such eases; there being evidence that he need not have allowed his mill to remain idle, other employment having been offered. It would give more than compensatory damages, and the ease was not of a nature to warrant this. So the jury were -afterwards told in another instruction. ■ The court erred also in refusing the third, fourth, sixth, and seventh instructions asked by the appellants. Judgment reversed, with costs; and cause remanded for a new trial.