This was an action of assumpsit brought by the defendants in error against the plaintiffs in error in the county court of Iowa county.
The cause of action was based upon a contract alleged to have been made between the parties whereby the defendants below were to work a certain range of mineral, and of the mineral raised the plaintiffs were to have a fractional proportion, the defendants a part and the owner of the ground (not a party to the record) a portion. The evidence adduced upon the trial was more or less applicable to this state of the case. The defendants demurred to the first count of the declaration which was special and pleaded issuably to the others, which were common counts. The court overruled the demurrer. The defendants stood by the demurrer. The issue of fact was afterwards tried by a jury. A verdict was given by the jury in favor of the plaintiffs under the instructions given by the court. The defendants moved to set aside the verdict and grant a new trial, which motion was overruled by the court. The defendants excepted to this decision. Judgment was rendered upon the verdict. Various exceptions were taken by the defendants to the ruling of the court during the progress of the trial, which were preserved by bill of exceptions. The defendants removed the case to this court by writ of error. Nine errors were assigned. A few of these will be considered.
Where there is an issue of law as to some counts decided in favor of the plaintiff, and issues of fact remaining to be disposed of as to the other counts, the jury should be instructed to assess the amount of damages sustained and proved by the plaintiff, as to the cause of action set forth in the counts demurred to, without finding the facte therein alleged as the basis *463of recovery. These are admitted by tbe demurrer. And, as to tbe other counts, they should find the facts first, and then assess the damages thereon. The oath administered to the jury should be so varied as to impose upon that body the obligation to dispose of the whole ease as above indicated. This is, in technical language, a lam quam proceeding. This rule of law was not observed in the case before us. In this there is error.
Among other things, the defendants, by their counsel, asked the court to instruct the jury as follows, to wit: “If, from the evidence, you believe that the plaintiffs owned a part, the defendants a part, and the landlord a part of the lead ore in controversy ; or, if you believe that the plaintiffs and defendants each owned a part, then you must find for the defendants, as one joint tenant, coparcener or tenant in common, cannot maintain an action ex contractu against his coparcener or cotenant.” This, as a general proposition, is sound law, and we see nothing in the case to warrant the court in refusing, as it did, to give the instruction as asked. We hold this refusal to be error.
The next instruction asked by the defendants was as follows : “ Unless you are satisfied, from the evidence, that the lead ore for which suit is brought was sold by the defendants, or actually converted to their use, you must find for the defendants ; for, if the lead ore was owned by plaintiffs and defendants, or by plaintiffs, defendants and the landlord, the possession of one of the owners was the possession of all; and this form of action cannot be maintained in any case by one part owner against another joint owner, unless there has been a positive sale or conversion of the property jointly owned.” This instruction was refused. The principles of law involved in this instruction are correct, and familiar to every lawyer, and we think were legitimately applicable to the facts developed in the case. This refusal was also an error.
Another instruction asked by the defendants and refused by *464tbe court was this: “ If you find from tbe evidence that there was a contract between tbe plaintiffs and defendants relative to the subject matter in controversy, that contract will control the case, and the plaintiffs are in law bound to declare specially on this contract, and prove the same precisely as laid in the declaration, so far as the terms of the contract are concerned; and if the proof does not come up to this rule, you must find for the defendants. The least variance is fatal to the plaintiffs, unless you also find that the contract so made has been fully performed by them. In that case, the plaintiffs may recover on the general counts and need not declare specially on the contract. If, however, you find from the evidence, that the plaintiffs have failed to prove a complete performance of such contract, they cannot recover under any general count, and as to such general counts, your verdict will be in favor of the defendants. And, when a special contract has been made by the parties, neither party can resort to general counts, except in cases where nothing remains to be done by the other party save the payment of money in consideration of what the party plaintiff has done for the party defendant. We are clearly of opinion that this instruction contains, in succinct form, correct law applicable to this case as presented to the jury. The refusal to give this in charge to the jury was error beyond all question.
The instructions given being directly contrary to those above mentioned must, of consequence, be considered erroneous, and the judgment must be reversed.
Judgment reversed.