The opinion of the court was delivered by
Redfield, J.The only question in the present case is, whether, upon a contract to pasture a given number of cattle, in a particular pasture, giving them the entire range of the pasture, and then suffering the fences to remain so poor, that the neighboring cattle broke in and eat up the feed, so that it was insufficient to sustain the whole number contracted for, the defendant having pastured a portion of the number, the plaintiff is precluded from any recovery whatever. We think he is not. This is a failure in the contract, which is not wanton, and is easily compensated by way of damages. And stipulations on the part of the plaintiff are never held as conditions precedent, so as to preclude a recovery for beneficial service rendered the defendant, unless in contracts for work, by the term, when the abandonment has been altogether without excuse. Such stipulations are always regarded as independent, whenever, as in the present case, they can be fairly compensated by damages deducted from the actual benefit received. In other words", the plaintiff is allowed to recover according to the actual benefit received by the defendant and not the market value of the service, or commodity, received by the defendant. The judgment below seems to have been according to this rule, and is therefore affirmed.