This suit, or action, is brought into this court by appeal, prosecuted by defendants below. The. first important question presented is, as to the character of this suit or action.
The petition has the substantial requisites of a bill in chancery, and an action at law. So, too, the summons is for *33specific relief and for a judgment for damages. Manifestly here is a misjoinder of actions — a pleading bad upon the face. Butcan the defendants now avail themselves of any advantage on account of the improper joinder of actions? We think not. This objection should have been taken by demurer, motion to strike out, or, perhaps, by motion to compel the plaintiff to elect upon which cause of action he would proceed.
These rights the defendants lost the moment they took issue upon the plaintiff’s petition. They then waived any objection to the first pleading, except such as were jurisdictional, and that the complaint or petition as a whole did not state facts sufficient to constitute a cause of action.
This waiver is to be construed like a stipulation or agreement, that defendants are content with the plaintiff’s pleadings, and take issue upon it as presented.
It is unnecessary longer to pursue this investigation, as touching the equitable relief sought, as none was decreed, and, therefore, that branch of the case is disposed of.
The judgment appealed from then, being judgment in an action at law, the first natural inquiry would seem to be, are the appellants, in this court, in such a way as to urge objections if they really exist?
Without attempting to settle the practice upon that question, as this is, probably, the only cause that will be presented under the Act of 1862, the same being repealed, we have concluded to regard this case as properly before us, and to dispose of it upon the merits.
Before considering the evidence, it is proper we should dispose of a preliminary question: Is a deed, in the usual and ordinary form, such a written agreement that the parties to it are estopped from showing, by proof, aliunde, the true and^ actual or additional consideration, beyond the consideration named in the deed?
We think not. And we regard the following authorities sufficient upon that point, although many more might be cited: (36 Maine, 413; 7 Greenleaf, 175; 23 Wisconsin, 519; 26 New York, 378; 17 Ohio, 617.) But the appellants insisted *34if this is to be treated, as an action at law, then the court below erred in allowing the testimony to be taken by deposition.
We think not. The defendants, by consenting to the blending of the two causes of action, consented that evidence might be received in any of the modes applicable in an action at law or suit in equity. And we might with propriety here remark, that it comes with a bad grace for a party to lay by in the lower court and allow all the advantages he might have availed himself of to pass unchallenged, and then come into this court and complain of that which results from his own carelessness or cleverness in the court below.
We are gratified to know this criticism does not apply to the counsel now engaged in this cause, as they are in no way answerable for the pleadings on trial in the court below. The next question then is, this: Is there evidence to support the finding?
The complaint, or petition, charges that this land was of the value of one thousand dollars or more. That the defendants agreed to give plaintiff cash, four hundred dollars ($400,) lumber, one hundred dollars ($100,) and to erect on their, the defendant’s, own land, thus purchased, a steam sawmill, in the following season, the erection of which, in the immediate vicinity of the plaintiff’s other lands, would have been to the plaintiff, by enhancing the value of his adjoining lands, at least worth five hundred dollars, and that this-last consideration (the building of the mill) formed an important or controlling consideration for the conveyance of the one hundred and sixty acres of land.
Was this land conveyed worth one thousand dollars or more? We think the preponderance of the evidence clearly established that proposition. There is the testimony of the plaintiff, of Benton Fraley, and of Burleigh, all estimating the land at about that sum, and one or more at higher figures. Then there is the testimony of the defendants, stating that the five hundred dollars, the consideration in the deed, was all the lands were worth; but it should be remembered, however, that the two Fraleys give some reasons upon which they base their judgment. They state that four or five hundred *35dollars worth of timber was, after this sale, taken from a few acres of this land, and all agree it was a valuable timber lot.
We.have no difficulty in determinating that the evidence fully establishes the fact that the value of the land conveyed by the plaintiff to the defendants, was -worth at least nine hundred dollars. But did the defendants agree to pay the plaintiff that sum for it? This is the most difficult feature of this case. Fraley swears that the defendants applied to him to purchase the land, and stated they wanted it to build a steam saw-mill upon; that he said to the defendants, “ we needed a mill bad in the neighborhood, and for the sake of getting a mill I would let you have the land.” They wanted to know how much he would take for the land. He told them he was not willing to take less than one thousand dollars. They replied in substance, “I ought to take less for the purpose of having a good mill upon it.” Now mark the language: They did not -question the value of the land, or insist the price was too, much; but urged the benefits to him by reason of the building of a good steam saw-mill. The witness says: “ they then made me an offer of four hundred dollars in cash, one hundred dollars in lumber.” I then asked them “ when they would build the mill?” “ they told me they would go right to work getting out the timber, and would have the mill completed in the spring of 1866,” being the next spring. “I then said to them, if they would give me four hundred dollars in money, and complete the mill in 1866, and give me one hundred dollars worth of lumber, they could have the land.” This proposition they accepted.
This testimony is strongly corroborated by Benton Fraley and I)r. Burleigh; and Burleigh, although called first by plaintiff, is recalled by defendants. This testimony is in part, and only in part, denied by the defendants.
The defendants swear they only agreed to pay four hundred dollars for the land, and that they did not agree to build the mill. But Mr. Bentley swears that the building of the mill was talked of between them, and that Fraley wanted the defendants to give a bond conditioned that they would build the mill; and this is inconsistent with the idea that they had *36not agreed to build the mill, and strongly corroborates the statement of Praley, at least so far as to prove that np to that time Praley understood the building of the mill to be apart of the considerations for the land. Praley and Bentley agree that Bentley and Andrews declined to give the bond, but each assigns a different reason for the refusal. Bentley says they declined because they had not agreed to build the mill, and Praley says they declined, and gave as a reason that they were going to getting out the timber at once, and that their word was good for what they had agreed to do. But another important item, as evidence, bearing upon this matter of agreement to build the mill,.is the second allegation of the answer of defendant Bentley. He there states that to induce Praley to sell Bentley and Andrews this land, W. A. Burleigh gave Praley a property interest of one hundred dollars. This is also proved by Burleigh himself — that he was desirous of having a steam saw-mill built, and to help the matter along and get the mill, he gave Praley some landed interest.
The evidence, then, is clear that’it was understood by all the parties that this steam saw-mill was to be built in the spring or summer of 1866, and we think the preponderance of the evidence is so strongly in favor of the plaintiff, that it was a part of the agreed consideration for the purchase of the land in question, that the mill should be built, that the court below was justified in so finding.
It is with much zeal argued that there was no description or kind of mill agreed upon, and no time that the mill should remain on the land. We need only apply a good common sense rule to settle this question. A good steam saw-mill, as ordinarily understood, would be a mill capable of doing such work, and to such amount, as is ordinarily done by good mills; the words “good mill” have a reasonably definite meaning. But we are told there is no rule applicable by which the damages in this case can be assessed; that the benefits to be derived by plaintiff, if any, were remote, speculative or fanciful.
We think 'not. Praley swears he asked one thousand ($1000) dollars for the land, and the evidence shows it was *37worth that sum, and that defendants did not ask him to take less, or question the value of the land, but urged that the benefits by reason of the building of the steam saw-mill, with the four hundred in money, would be a fair payment for the land. If, therefore, the testimony of Fraley is to be regarded as true, strongly corroborated in many particulars by the testimony of other witnesses, it must be said that the benefits to be derived by the plaintiff, as agreed and understood by the parties, was the difference between the price actually paid and ■ the value of the land; and this furnishes a very correct rule, tested, however, by another rule, namely: That as a consideration for the defendant’s agreement to build a steam sawmill in a certain place, by a certain time, the plaintiff paid the defendants in the sale of the land the sum of five hundred dollars, in the conveyance of this land, the defendants having entirely failed to build the mill, the least that can be said is, that in equity and good conscience, the plaintiff should recover the value or amount he paid for defendant’s promise and agreement to build the mill. Or by still another rule. The evidence clearly establishes the fact that the increased value of Fraley’s land in the immediate vicinity of this land, would have been at least five hundred dollars. We think, therefore, that the court below was fully warranted in estimating the damages the plaintiff had sustained at five hundred dollars, and we find no reason for interfering with that finding. Let the order be, that the finding and judgment in the court below are affirmed with costs.
See Appendix, Note A.