Opinion by
Lewis, C. J.,full Bench concurring.
The verdict in this case being for the plaintiff the defendants moved for a new trial, which was denied; defendants appeal, and claim that the judgment should be reversed.
Fvrst — Because of the misconduct of the jury; and
Second — Because the plaintiff not having alleged or claimed damages in his complaint, the verdict which was for six thousand five hundred dollars, was not authorized by it.
Upon the motion for new trial the defendants produced the affidavit of N. C. Kinney, the Deputy Sheriff who was in charge of the jury after they had retired to deliberate on their verdict, *407in wliicli lie swears that the jurors had in their possession and drank spirituous and intoxicating liquor, without the consent or authority of the Court; that while he was absent from the jury room for a short time the jurors drank the larger portion of two bottles of the liquor ; that he threw away the remainder, and received the assurance of the jurors that there was no more liquor in their possession; but that he again found them in possession of and drinking what he supposed to be either brandy or whisky.
It is not stated, however, by whom the liquor was furnished, or that so much was drank as to intoxicate or affect any of the jurors in the least. It has been held that a mere drinking of intoxicating liquor by a juror during the progress of a trial, regardless of the quantity or the fact that it was furnished by himself, would authorize the setting aside of the verdict. (People v. Douglas, 4 Cowen, 26; Brant v. Fowler, 7 Cowen, 562; Rose v. Smith & Davy, 4 Cowen, 17; Kellogg & Reed, v. Wilds, 15 Johns. R. 455, and The People v. Ransome, 7 Wend. 417.) But these decisions are not followed in the later cases. In Wilson v. Abrahams (1 Hill, N. Y. R. 207), they were all reviewed, and the Court held that the use of intoxicating liquor by jurors, unless furnished by the person in whose favor the verdict was given, or unless it were shown to have produced intoxicating effects, was no ground for setting aside the verdict.
Judge Bronson in delivering the opinion of the Court concludes as follows:
“When in the course of the trial a juror lias in any way come under the influence of the party who afterwards has the verdict, or there is reason to suspect that he has drank so much at his own expense as to unfit him for the proper discharge of his duty, or where he has so grossly misbehaved himself in any other respect as to show that he had no just sense of the responsibility of his station, the verdict ought not to stand. But every irregularity which would subject the juror to censure, whether in drinking spirituous liquors, separating from his fellows, or the like, should not overturn the verdict, unless there is some reason to suspect that irregularity may have h^d an influence on the final result.”
*408This decision was followed by the same Court in Dunning v. Humphrey & Clark, and they are sustained by numerous authorities both in this country and in England. (Commonwealth v. Roby, 12 Pick. 510; 6 Greenleaf, 379; United States v. Gilbert, 2 Sumner, 21; Duke of Richmond v. Wise, 1 Vent. 124; The King v. Burdett, 12 Mod. 111.)
Every irregularity on the part of a jury does not authorize the verdict to be set aside, unless the party complaining shows at least by reasonable presumption that he has been injured thereby.
In this case we see nothing from which it can be even inferred that the defendants were prejudiced by the misconduct complained of. If it were shown that any of the jurors drank so much liquor as to incapacitate them from the proper discharge of their duty, or so as to become in the least intoxicated, the verdict should be set aside. Nothing of the kind, however, appears.
The second point relied on by counsel for appellant seems to be well taken. The complaint seems to be framed solely with the view of recovering the penalty specified in the agreement between plaintiff and defendants, regardless of whether any actual damage had been suffered or not by the breach of contract. The law, however, only authorizes the recovery of the actual damage sustained upon the breach of a contract of this character, ; and if no actual damage is proven none can be recovered, though a breach of contract is shown.
The violation of an argument in which a penalty for breach is specified does not, therefore, necessarily authorize a recovery of such penalty.
In an action upon such an instrument the plaintiff should not only prove the contract and the breach by defendants, but in addition thereto it is necessary to establish actual damages resulting from such breach, or he can only recover a mere nominal sum. In such a case, if only nominal damages can be recovered where there is no actual damage sustained, it follows that an allegation of damage or the statement of facts from which it must be inferred becomes indispensably necessary to the sufficiency of a complaint where more than mere nominal damages are claimed.
*409We find no snob allegation in tbe complaint in tbis action.
Tbe statement that on tbe lOtb day of August, A. D. 1864, plaintiff bad sawed and delivered in tbe mill yard three hundred thousand feet of lumber more than tbe defendants had received or paid for, does not necessarily show a breach of contract, for tbe agreement provides only for tbe payment on tbe tenth day of each month for so much lumber as would appear by tbe shipping boobs of defendants to have been delivered to them.
And there is no provision in tbe instrument requiring tbe defendants to receive tbe lumber as fast as it was sawed. It is quite evident, however, that they were to pay for it only as it was received by them and evidenced by their shipping books.
If they refused for an unreasonable time to receive and pay jfor lumber sawed by plaintiff, there should be an allegation to that effect in the complaint, for where no time is specified when an act is to be done, it will be presumed in law that it is to be done within a reasonable time. In such a case plaintiff would be entitled to recover the same as if there had been a failure to perform an act which is expressly agreed to be performed on a day specified.
The complaint, therefore, does not state facts sufficient to sustain the judgment.
Judgment reversed, with leave granted plaintiff to amend his complaint.