This case comes before us on a motion to set aside the verdict, which was for the plaintiffs; and also on exceptions. We have no full report of the evidence, and therefore cannot consider and act upon the merits of the motion.
The first exception is, that the presiding justice did not order a nonsuit, upon the plaintiff's own testimony, upon the ground that if the defendants were liable at all to the plaintiffs, they were liable severally for the damages claimed in this action, and not liable jointly.
It appears from the report of the evidence, so far as it goes, that on the tenth of December, 1853, the defendants, Waldo T. & H. Pierce, Henry E. Prentiss and Horace Jen*539ness, gave a "permit,” to be noticed more particularly hereafter, to the plaintiffs in this case, to cut timber on certain lands upon certain terms and conditions therein set forth. That the firm of Waldo T. & H. Pierce owned one fourth, said Prentiss one fourth, and said Jenness one half of said lands, in common and undivided. This “ permit ” was in writing, and signed by the plaintiffs, W. H. Taylor and W. H. Homcnway, and by the defendants, with mutual agreements and stipulations, which need not now be noticed. The plaintiff’s omitted or neglected to perform the agreement on their part within the time stipulated, whereby they became liable to pay the defendants the sum of four hundred dollars as liquidated damages, over and above the actual damages, according to the terms of said permit. On the first day of July, 1854, by an endorsement on the same, the permit was extended for the next lumbering season, with the following alterations, viz.: “ The said Hemenway is not to cut on that part of the lot No. 6, range 2, which lies west of Machias river, but may cut on that part of lot No. 6, range 3, which is east of that river; twenty-five cents per thousand is to be added to the stump-age of the Norway. We have received the note of William H. Hemenway and Hemenway & Hersey running to William H. Taylor, and by him endorsed, dated July 1, 1854, and payable with interest in fifteen months for the sum of two thousand dollars, which is taken by said Jenness; a similar note of one thousand dollars, which is taken by said Waldo T. & H. Pierce, and a similar note of one thousand dollars, taken by said II. E. Prentiss, which notes when paid, are to be in payment of four thousand dollars of the above stumpage, and the balance to be paid according to the permit, by satisfactory paper, in fifteen months from July 1, 1855, with interest, which paper is to be given July 1. The owners’ lien to continue on the timber till all the papers are paid.” Which extension and alteration of the permit was signed by the defendants in this suit. The case finds that the plaintiffs failed to go on to the premises in the winter of 1854.
There was evidence by plaintiffs tending to show that *540they went on as early as they could in 1855, and the contrary. And there was evidence that there was no timber left on the premises, which, by the contract, the plaintiffs were required to haul, and also on the part of defendants tending to show that the plaintiffs left on said premises a large quantity of such timber as should have been hauled. A few days after said notes fell due, October 10th, 1855, the plaintiffs paid on that one which was taken by said Prentiss, and which he still held, $525, which was endorsed on said note; on that which was taken by said W. T. & H. Pierce, and which they still held, the same amount; and on that one for $2000, which was taken by said Jenness, which he had endorsed and transferred before it was due, to Hinkley & Egrey, the sum of $1100, which several sums were the amount of the stumpage (cut on said premises, with interest, from the date of the extension on the back of said permit. The case finds that said notes were owned severally, each by the man who took it, and that said Jenness was insolvent when said notes were given, and had since so remained.
We are not prepared to say that if the defendants had, in any way, by selling the land or otherwise, prevented the plaintiffs from entering upon the premises to which the permit related, and cutting according to ’ the terms of the permit, that an action could not have been maintained by the plaintiffs against them jointly, to recover such damages as the plaintiffs might thereby have sustained. The defendants were under no obligation to extend the permit. They were at liberty to exact new terms and conditions upon granting such extension. Prom reading the original contract, we are led to the conclusion that the defendants were desirous not only to contract, but to be certain that the contract should be fully performed by the defendants. To make certain the sale of stumpage to the amount contracted for, and within the time specified. The timber was exposed to fires and trespassers, and they no doubt wished to convert it into money or other property less exposed to deterioration or loss. Hence they had a stipulation for a forfeiture on the *541part of the plaintiffs, if they failed to perform on their part, as well as for the payment of the actual damages. It seems that all this was not sufficient to secure a performance. By the terms of the extension, it seems to have been understood that the operation for the next year should make the stump-age amount to at least $4000, and for this purpose the plaintiffs were required to give notes for that sum; and they did give notes to the defendants, severally, according to their respective interests in the lands to be cut upon. No question seems to have been made or doubt entertained by either party, at that time, that timber enough could be found of the specified kind, quality and dimensions, to furnish that amount of stumpage. For aught that appears, the plaintiffs knew as much about the lands and the timber as the defendants did. They had had ample time to inquire and examine. By the endorsement on the permit, the plaintiffs were to pay severally to the defendants, so far as the notes were payment, the amount which belonged to each tenant in common, according to his interest in the land. It is not uncommon in contracts, to find some stipulations which are joint, while there are others which are several. Cleaves v. Lord, 3 Gray.
This action is founded upon a partial failure of the consideration of each of those notes. To whom have the plaintiffs made these payments, if they have made them at all, or had made them before this suit was commenced? Not to the defendants jointly, but to each one severally. If any action can be maintained for a partial failure of consideration, it should be an action against each one to recover money which he has received, more than he is justly and equitably entitled to hold.
We are of opinion that if the presiding justice should not have ordered a nonsuit upon this point, and we do not decide that ho was bound to do so, he should have instructed the jury that, from the whole evidence, the plaintiffs had failed to prove a joint promise on the part of the defendants. For this cause we think the exceptions should be sustained, *542and a new trial granted. We might stop here. But it may be advantageous to the parties to know our opinion upon some other points.
The defendants contended, that if there was timber enough on the premises of the quality named in the permit, to pay the notes, at the rates of stumpage agreed on, and that the plaintiffs, by putting on and keeping on teams, and using the diligence required by the permit, might have hauled; that the notes must be paid, and that the plaintiffs could set up no defence, unless they had done all the contract required, to haul the timber to pay the notes; but the court overruled the position, and instructed the jury that “ if there was timber left on the premises, which the permit required to be hauled, and which the plaintiffs, by putting and keeping on the teams and using the diligence required by the permit, might have hauled, that was only a matter of damages to be allowed the defendants, in offset to the plaintiffs’ claim, and that the rule of damages was the difference between the contract price of the timber so left and the present value of it; and that if the timber so left was worth as much now as the contract price, there would be no damages but interest on the same; or if there was no timber left, there would be no damages.”
We are of opinion that this was erroneous. If the plaintiffs failed, by their own fault or neglect, to obtain timber enough to pay the $4000, they cannot set it up as a defence to the notes, or either of them, or make it the foundation of a suit for money had and received against the defendants, either jointly or severally.
The judge was requested to instruct the jury that the suit could not be maintained, because, at the date of the writ, the plaintiffs had paid nothing on the notes, but the amount of stumpage on the timber cut, and which they had credited in their account annexed. He declined to do so.
In this case we do not regard the notes, per se, as money in the hands of the defendants. They were not taken as cash. A lien was stipulated for, on all the timber cut, to *543secure their payment. The notes taken by Prentiss and by the Pierces still remained in their hands as unpaid, except so much as was admitted by the plaintiffs to be due for stump-age on timber cut after July 1, 1854. Neither of these two defendants, therefore, could be said to have received any money from the plaintiffs, at the time the suit was commenced, which they were not entitled to hold. As to Jonness, it may be and probably is different. He had disposed of his note and received the value of it in money. An action may be maintained against him alone, if it shall prove to be the fact that the consideration of the note which he had and disposed of, has failed, in part, without any fault of the plaintiffs.
For these reasons the exceptions must he sustained.
Verdict set aside, and new trial granted.
Hathaway and Cutting, J. J., concurred; Tenney, G. J., Rice and Appleton, J. J., concurred in the result only.Rice, J. The action was prematurely brought, and for that reason there must be a new trial. A nonsuit could not have been ordered by the presiding judge, in view, of the lohole evidence, it being offered on both sides. 32 Maine R., 576. The action is properly joint. The permit, is joint, and the receipt of the notes is joint. The recital of the distribution of the notes by the defendants inter se se. is wholly immaterial, and cannot affect the plaintiffs.
The measure of damages as agreed in the permit is “ the full and liquidated sum of four hundred dollars * * over and above the actual damage which the grantors may sustain.” The actual damages were such only as “ were the immediate and necessary result of the breach of the contract by the plaintiffs.” Bridges v. Stickney, 32 Maine R., 361.
I concur in .the result.
Appleton, J. According to the terms of the receipt given by the defendants, “ the notes when paid are to be in payment of four thousand dollars of the above stumpage,” and *544“ the owner’s lien on the timber to continue till all the papers are paid.” The notes were therefore not to be regarded as payment, for if so, there could be no lien. The notes not having been paid, the action is prematurely brought.
The exceptions therefore must, for this reason, be sustained.