Rogers v. Davidson

Per Curiam: The plaintiff entered into a contract with the defendant by which the plaintiff was to put up a portable saw-mill on tract No. 5204, as soon as reasonably practicable, and manufacture for the defendant the pine timber owned by him on that tract, and also upon tract No. 5207. The plaintiff erected the sawmill, and commenced the manufacture in pursuance of his contract, when he was stopped by a writ of ejectment, followed [442] by a writ of estrepement as to tract No. 5204, and subsequently by a writ of ejectment as to the other tract. A recovery was had in the first case for the plaintiffs therein. This put an end to the plaintiff’s operations under his contract, and he now sues to recover damages for his loss sustained by reason thereof. It needs no argument to show that the failure of the defendant’s title compelled the plaintiff to cease his operations. The mill, as before observed, was placed, as it was agreed' that it should be placed, upon No. 5204. Upon this tract he could not cut a stick of timber after the service of the estrepement. Nor do we think he was bound to take the risk on No. 5207 after the writ of ejectment. His abandonment of his operations was therefore compulsory, and was the fault of the defendant. It follows, that he was entitled to recover the loss sustained in putting up his mill, and equipping himself to perform. Under the circumstances, we do not think it was error to decline to instruct the jury to find for the defendant. Nor do we see any substantial error in the instruction in regard to the measure of damages: see second assignment. The defendant’s second point which raised this question was correctly answered, and that portion of the general charge quoted in this assignment, while not entirely free from criticism, yet, taken in connection with the answer to the defendant’s second point, could not have misled the jury. Judgment affirmed.