Weathersbee v. Green ( 1856 )

The opinion of the Court was delivered by

Whitner, J.

The discount offered by defendant was founded on an entire contract, and the range of inquiry proper for the jury was too much restricted by the construction given to it by the Judge on Circuit.

The actual damage occasioned by the failure of plaintiff to perform his part of the contract, constituted the true measure. An impression that the verdict may not have been varied on the case made, even on a more enlarged inquiry, may not be well founded; because we cannot see this with certainty it is proper to send the case back for a re-hearing.

The defendant, as affirmant, will of course furnish the evidence on which he rests for a larger allowance than that heretofore conceded. In granting the new trial, it is not intended to intimate defendant’s right to recover the full value of trees remaining on his land, as though they had been likewise cut and hauled away. In the forest their value may be yet as great as the standard fixed by the agreement. Those trees selected and removed, may likewise have fallen within the same estimate. These, and inquiries of .like import springing out of the contract, are questions for the jury.

The motion for a new trial is granted.

Wardlaw, Withers, Glover and Munro, JJ., concurred. O’Neall, J., absent at the argument.

Motion granted.