Appellee sued for breach of a contract to make and deliver staves. Appellants in their seventh assignment complain of the charge of the court as given, and in the eighth assignment complain, to the effect that the court erred in failing to submit to the jury the material issue of defense as to the number and value of the culls sold by appellee to appellants. Considering the two assignments together, we are of the opinion that there was error in the matters complained of. The charge as given by the court in a general way instructed on the burden of proof and then directed the jury to "find from the evidence how many staves the defendants accepted from the plaintiff under the May contract by inspection," and multiply the number thus found by the contract price therefor, and "then you will find the number of staves gotten out under the July contract by plaintiff, inspected and accepted by defendant or his agents," and multiply the number by the contract price, "less a rebate of the hauling of the staves yet in the woods," and "then add the two amounts thus found together, which said amount will be what the defendant is due and owing to plaintiff. Then you will add up and put in one sum all the amounts paid to plaintiff by the defendant for said staves. Then strike a balance by subtracting one from the other, and whatever the balance may be, either way, will be a verdict for plaintiff or defendant as to the staves." The appellants, by pleading and evidence, contended in the case that the "inspection" of the staves, as submitted by the court, was by the inspectors fraudulently and falsely made by connivance and collusion with appellee so as to pass a great number of culls as first-class, and for which culls appellants were not owing by contract anything, and were not liable. By specially directing and requiring the jury to look to and find the number of staves "accepted *Page 382 . . . by inspection," and in ignoring the issue of fraudulent and collusive inspection, the charge is subject to the objection that it had the effect to assume that the inspection was not fraudulent and collusive and did not contain culls, and in effect excluded the material issue raised by the pleading and evidence. Under chapter 39, Acts 1903, p. 55, it is made the duty of the court to charge the law of the case. The law of the case means the substantial issues of the case. San Antonio A. P. Ry. Co. v. Votaw, 81 S.W. 130. This latter case holds, and others do also, and properly, we think, that the Act did not change the rule precluding a party from complaining of the court's mere failure to submit an issue in the absence of a special request therefor. But the charge in the instant case, under the pleading and evidence, was subject, as stated, to greater and stronger objections than merely failing to submit an issue. It is the rule that where a charge excludes, or in effect excludes, a material issue of defense, it constitutes reversible error. Eppstein Co. v. Thomas, 16 Texas Civ. App. 619[16 Tex. Civ. App. 619], 44 S.W. 893. The reason of this rule is apparent, because if a special charge were given on the point excluded, or in effect excluded, it would be contradictory of the main charge, and the two charges would be misleading to the jury. The general form of the charge given in this case, in the first portion thereof, is criticised in the case of Bering Mfg. Co. v. Femelat, 35 Texas Civ. App. 36[35 Tex. Civ. App. 36], 79 S.W. 869.
The latter part of the special charge complained of in the ninth assignment was upon the weight of the evidence, and should be omitted in another trial of the case. It is not within the province of the court to say in this case as a matter of law, or to assume as a fact, or to require the jury to find in view of the pleading and evidence, that the inspection sheets were conclusive evidence of the number of first-class ties delivered by appellee.
To carry out his contract to make and deliver staves the appellee purchased the timber on the Corn land. Claiming that appellants induced him to buy the timber, and that by reason of the alleged prevention of the performance of the contract this standing timber was left on his hands, appellee offered testimony, for the purpose of showing damages resulting to him, of the net value of the standing timber per thousand staves for the purpose of making staves, and the loss of this profit to him. The appellant objected to this evidence because immaterial, and not damages properly recoverable in the case. A part of appellee's recovery was based on this evidence. It was error in the case to admit the evidence. The proper measure of damages in the case, as to the staves alleged to have been delivered, and for which, as alleged, the appellants refused to pay, if they did, is the contract price. For the number of staves contracted for less the number claimed to have been delivered by appellee, the measure of damages was the contract price less the cost of making and delivering the staves. 3 Page on Contracts, sec. 1591; Cyc. Law and Proc., p. 161; Tufts v. Lawrence, 77 Tex. 526, 14 S.W. 165; Fox v. Ellston,33 S.W. 749. The principle of law on which appellee claims the damages in question are allowable is allowable in certain cases, but it is because it is sufficiently plead as an equitable ground of action. And even in *Page 383 cases where it is properly plead as an equitable ground of action the measure of damages would be the loss equal to the difference between the cost of the standing timber as a whole and any less sum he was forced to sell it for as a whole in the market. Appellee would not be allowed to recover the value of the standing timber for staves and also what he paid for same, and still remain the holder and owner of the standing timber.
It was error to admit the evidence complained of in the third and sixth assignments, upon any ground in the case. It does not go to prove, nor is it sufficient for the purpose, that the appellants instructed the agent to practice the fraud, or that in the absence of proof sufficient to show a system of so doing the appellants practiced fraud in this case. Even if exemplary damages were claimed, which are not, we are inclined to doubt the admissibility of the evidence. Unless the statement could bind appellants, which it could not, it was inadmissible.
For the errors discussed the case was ordered reversed and remanded.
Reversed and remanded.