On the trial of this cause in the District Court several exceptions were taken to the allowance and rejection of testimony, as well as to the charge of the judge; the more important of which will be noticed.
The action was originally begun by Arba Holmes as sole plaintiff. Subsequently, by an order of the court, Gould and Powell, his former partners, were joined with him. Exception was taken to the reading of certain depositions taken in the cause prior to this amendment as to parties. The testimony ta,ken in the depositions related to the value, in Chicago, of certain burr millstones, and was alike applicable to the case after, as well as before the amendment, and there is no substantial reason for excluding the deposition. — Vincent v. Conklin, 1 E. D. Smith, 203.
By the terms of the written contracts under which the plaintiffs below were to furnish the machinery and place the same in the mill building of the defendants, the defendants v;ere to have the building completed,- with floors and *355stairs ready for the machinery, by the first day of July, 1868. When the plaintiff closed his testimony, it clearly appeared that the building was not completed till long after the first of July, and .that the defendants told Powell, one of the plaintiffs, that they were disappointed in getting the stone work done ; that the plaintiffs had been there a month or more before the stairs and floors were all in; that not until the election in October was the mill building completed, and that the plaintiffs got the mill running by the last of November, or the early part of December. With a view, no doubt, to establish a claim for damages' for not having the machinery put up by the first day of September, as required by the contract, among the first questions asked by defendant’s counsel was : “When were Holmes, Gould and Powell first ready to go to Boydston and Heth’s mill with the machinery, and to put it up ?” The question was excluded, the court remarking that under the contract and the case as then made, the defendants were not entitled to show what the mill might have earned if running by September first. This is correct. As the case-then stood, the defendants appeared as having failed to complete the building till a month or more after the time even when the machinery was to be in. They could not lay a foundation for damages upon their own wrong. Until this showing of the plaintiffs was questioned and a foundation laid, the court was right in excluding this testimony as immaterial.
Further along in the course of the trial the defendant’s counsel asked of a witness : “ What would have been the average profit of that mill, fully completed according to contract, from the first day of September to the time when the plaintiffs turned the same over to the defendants ?” This was objected to “ as incompetent on the ground that it was immaterial under the written contract offered in evidence.” With the written contract requiring Holmes, *356Gould & Co. to have the machinery in running order by September first, I cannot understand the force of this peculiar objection. But as being wholly immaterial in the case as then made, the court correctly rejected it, as it might have done on his own motion in accordance with the prior holding, the case remaining unchanged with respect to the defendant’s failure to have the mill in readiness for the machinery.
Again, a witness is asked by the defendant’s counsel, “ How much did the defendants pay for hauling machinery from the mill back to the foundry to be finished and completed, and for hauling the same from the foundry to the mill the second time ?” The question was asked for the purpose of establishing a claim for extra hauling done by the defendants in taking- a shaft back to the foundry to be refitted. Without stopping to inquire whether, under the plain terms of the contract, wherein they obligate themselves “ to do or have done all the hauling of said machinery as is necessary for the completion of the works,” they could make any charge for extra hauling, it is enough that proof of what they may have paid for such hauling is not evidence of its value. They could, m any event, claim only what such labor was worth. What was paid might be more or less. The court was right in sustaining the objection.
The same may be remarked in reference to the ruling upon the question as to “what was paid” for extra board of hands employed in replacing imperfect machinery.
I come next to consider the exceptions taken to the charge of the court. The first is to that which instructs the jury: “That the rule of law in the assessment of damages in such cases as the present one, is the difference between the value of the machinery actually put in by the contractors, and the actual cost of the new machinery put in place of it.” Here the court erred. No question was *357made by the' defendants upon the trial below against the right of the plaintiffs to recover anything because of a failure to comply with the contract, but it was contended that such recovery must be subject to any claim for damages arising from the failure of the plaintiffs to put the quality of machinery and work in, and do it in the time required by the contract. It was the duty of the jury first to determine whether the machinery and work put in the mill was such as was called for by the contract. Finding that it was not, as seems clearly to appear from the evidence, it is wholly immaterial what character or grade of machinery the defendants’ fancy or circumstances, may have led them to substitute in the place of it. The court improperly assumed that the machinery put up by the defendants was such as the plaintiffs were obligated to put in in the first instance. This was a matter for the jury to determine, and even had they concluded that it was such as the plaintiffs were to put up under their contract, they were improperly directed to consider its “actual cost” in reaching their estimate of damages. The use of the vrords “ actual cost,” in this particular connection, would imply what was paid for the new machinery. That, as I took occasion to remark in another connection, is not conclusive evidence of its value. It may have been more or less than its true value. The defendants were entitled to have Such machinery and work as was specified in the contract. If that which was put in was inferior in respect to that, the defendants were entitled, as damages, to the difference between its value and what it would cost to replace it with such as was demanded by the contract. The court was asked by the defendant’s counsel to charge that “ if the jury believe from the evidence that the item of forty dollars, charged in plaintiff’s bill of extra work for elevator, &c., was a private matter between Powell and these defendants, then these plaintiffs cannot, in this action, be *358allowed said item.” The court refused to charge .as requested simply, but added thereto, “unless the same has been assigned to these plaintiffs.” Powell, one of the plaintiffs testifying in behalf of plaintiffs, enumerated this among other items for extra work. Subsequently he testified that “ the forty dollar item in our bill of extras for pulleys, &c., for elevator, was a private bill between defendants and me alone.” This is all the testimony relating to this item, one of the plaintiffs testifying that the bill for this item was due to him individually, with no word of evidence showing that he had ever assigned or transferred this claim to the plaintiffs. Under this proof it was the duty of the court to give the instruction as asked, and without qualification. To qualify it as was done, was calculated to raise an inference in the minds of the jury that the account had been assigned. It is error for the judge to leave the jury to infer a fact not warranted by the evidence. — 12 Barb. 84 ; 1 Wend. 50 ; 1 Denio, 583 ; 15 N. Y. 524.
Without noticing other points raised, the judgment must be reversed and a new trial had.
Reversed and remanded.