(after stating the facts.) Two questions are presented. First, did the court err in instructing the jury that appellant could not “recover anything whatever on his counterclaim?” Second, did the court err in refusing to permit the jury to assess damages for the wrongful issuance of the attachment?
1. Under the undisputed evidence, appellee was not liable to appellant on his counterclaim, because appellant was prevented by the State authorities from further cutting the timber. The contract provides in part as follows:
“It being understood that party of second part shall be under no obligation to cut any timber after the State authorities shall have declined to allow him any further time. ’ ’ Under this express stipulation, appellant was under no obligation to cut any timber after the State authorities declined to allow him further time to cut same. The obligations of the contract were mutual. As appellant was not bound to take the timber after the State had prevented further cutting, neither was appellee bound to furnish it after the State had declined to allow further time for its cutting. This contingency was contemplated by the parties to the contract, and was covered by the clause above quoted. Other provisions are as follows: “It is further agreed that the party of the second part shall have the right to cut and manufacture into staves only such part of the timber as he may choose, and that he shall only be required to pay for such cuts as he may use. The party of the second part shall cut and remove said timber as expeditiously as possible, but in no event shall he be liable to the party of the first part for any greater amount of timber than he shall have cut and removed to the said station or landings.”
These provisions all show that the contract did not contemplate that appellee would be bound to furnish appellant full 500,000 feet of timber, but only so much of the estimated amount as under the contingency mentioned he might be able to cut and use. The court therefore did not err in its construction of the contract, and in eliminating the question of damages under the counterclaim.
2. The court, having dissolved the attachment, erred in not permitting the jury to assess whatever damages the proof showed appellant sustained by reason of the attachment. Such damages are authorized by statute (Kirby’s Digest, § 881), and the plaintiff and his sureties on the attachment bond are liable for same.
The damages are allowed as compensation to the defendant in the attachment for the loss he has sustained. Holliday v. Cohen, 34 Ark. 710; Boatwright v. Stewart, 37 Ark. 614; Goodbar v. Lindsley, 51 Ark. 382; Adkins v. Lacy, 68 Ark. 170.
There was evidence tending to prove that appellant had sustained damages by reason of the attachment. It was a question that the court should have submitted to the jury. There was evidence to support the verdict and judgment for $208.86, and the same is affirmed, but the cause is remanded with directions to determine what damage appellant sustained by reason of the attachment and for further proceedings pursuant to law.