It was not insisted in tbe argument, that under tbe state of tbe pleadings and proof disclosed by tbe record, tbe plaintiff in error is entitled to recover on tbe special contract set out in bis declaration; but tbe error chiefly complained of is, tbe refusal of tbe court to allow tbe proof of tbe value of tbe premises by way of annual rent, to go to tbe jury on tbe common counts.
*815In Snedicor v. Leachman, 10 Ala. Rep. 330, it was beld by tbis court, that when tbe plaintiff declares on tbe common counts, be cannot recover, if tbe proof shows there was a special contract between the parties that tbe plaintiff was to receive specific articles in payment, and tbis, notwithstanding tbe testimony concerning tbe special contract, did not disclose all its terms. The court in .that case takes tbe true distinction between those cases of tbis class, in which a recovery may be bad on tbe common counts, when a special contract is shown to exist, and those in which it cannot. In that case, it is said, that “tbe plaintiff may recover on tbe common counts, although there is a special contract, whenever, by tbe breach of tbe contract, tbe plaintiff is entitled to recover a sum in numero ; that is, where tbe damages for tbe breach of contract are liquidated, and require nothing to be done but a mere calculation.”
The same rule bad been previously acted on in Sprague v. Morgan, 7 Ala. Rep. 952, and has since, in Aikin v. Bloodgood, 11 Ala. Rep. 221, Anderson v. Rice, at the last term, and several other cases which it is needless to cite; and we have no doubt, it is tbe true rule in such cases.
In tbe present case, tbe proof clearly shows, that there was a special agreement between tbe parties, by tbe terms of which the plaintiff was to receive one hundred and fifty thousand feet of lumber for the rent of the mills; but the testimony does not show, that by that agreement any value in money was placed on this lumber, by the hundred or by the thousand feet, so that, by a mere calculation, the jury could ascertain the plaintiff’s damage. On such contracts, the law fixes no invariable rule by which the damages are to be measured. If the failure to deliver the lumbér had put the plaintiff to no other inconvenience than the mere disappointment arising from such non-delivery, the measure of damages would be, the value of the lumber at the agreed place and time of delivery ; whereas, if he were engaged in building, and his workmen were delayed and hindered by such non-delivery, the measure of damages would be increased in proportion to the actual injury sustained. It presents, then, a case of unliquidated damages, and the proof offered by the plaintiff, and ruled out- by the court, was clearly inadmissible under the common counts.
*816The counsel for the plaintiff insists, however, that although the. rule alluded to may be considered as the true one in ordinary cases, yet our statutory regulations, in relation to actions for the recovery of rent, will exempt this case from its operation.
That statute provides: “It shall be lawful for any person or persons to whom any rent may' be due, or the executors or administrators of such person, when the demise is not by deed, or if by deed, not specifying the rent to be paid, to recover a reasonable satisfaction for the tenements occupied by the defendant, in an action on the case for the use and occupancy of what was held and enjoyed; and if, on evidence on the trial of such action, any parol demise reserving certain rent, or demise by deed, but no rent therein agreed on shall appear, in either case, the plaintiff in such action shall not be nonsuited, but shall recover a reasonable satisfaction for the tenements occupied.”
It is evident, that the legislature intended to prevent non-suits in those cases of parol demise, reserving rent to be paid in money, in which the special agreement between the parties was inartificially set out, or wholly omitted by the pleader in his declaration; and in those in which assumpsit, and not covenant, was brought, when the demise was by deed, which did not ascertain the amount of such rent. It is also evident, that its terms were never intended to embrace those contracts for rent, which contained a reservation of rent to be paid in specific articles, the value of which was not ascertained by the agreement between the parties.
There is nothing in the cases to which we are referred by the counsel for the plaintiff in error, to conflict with these views.
There is no error in the record, and the judgment must be affirmed.