The complaint in this ease is-in accordance with form 9, p. 291, of the Code, for the breach of a dependent covenant or agreement. The demurrer to it was overruled, and the ruling though assigned as error, is not insisted on in argument of counsel, and is therefore waived.
The pleas upon which issue was joined were the general issue, set off and recoupment.
1. The court in its general charge, first excepted to by defendant, stated to the jury, “That the contract should be so interpreted, that the timber should be delivered in a reasonable time.” The contract of the plaintiff was, “to raft said timber as fast as same is put to the mouth of creek, and run timber as fast as water will permit.” It took time, certainly, to collect a raft, after the timber was put in the *272creek, and time to run. it to its destination, and tlie plaintiff could be required to do no more than perform his contract in a reasonable time. Under the contract and the evidence in the .cause, this charge was free from error.
2. In the second charge ‘given, the measure of damages is incorrectly stated, and it was for this reason erroneous. The plaintiff, if entitled to recover, was. entitled to no more than the difference between the price defendant agreed to pay for the delivery of the timber, and the expense to plaintiff in delivering -it, or in' other words, to the profit it was shown he would have realized, if he had not been discharged, but allowed to perform his contract.
3. The first charge. asked by defendant was properly refused. There was evidence tending to show, that plaintiff was ready and-able to perform his contract, “but was prevented by the wrongful act of defendant, and that he was performing his'contract when prevented by defendant;” and the charge completely ignored-this evidence.
4. There is no proof of what plaintiff earned by the labor he afterwards performed, further than that, “after Christmas, he got employment and made a living out of it.” There was no basis therefore for the request that there should be deducted from what plaintiff was entitled to recover, the amount he afterwards realized by his subsequent employment, as shown by the evidence. The jury could not have calculated what he earned; and the second and third charges asked by defendant and refused were, for this reason abstract, and calculated to mislead, and may have been properly refused on that account. 3 Brick. Dig. p. 113, § 106. Besides, said charge No. 2 assumed, as a matter of fact, that there were timbers lost in the rafting, and was erroneous, also, for this reason.
Reversed and remanded.