On Petition for a Rehearing.
Morris, C.The appellee asks a rehearing in this case on the ground that this court erred in holding that the instruction of the court below to the jury did not state the law correctly, and for the further reason that the instruction upon which the judgment was reversed was, if erroneous, harmless.
The instruction which was held to be erroneous assumed a state of facts which showed that the contract claimed to have been made by the parties had been abandoned, and that the work to which it related had been so performed by the mutual arrangement of the parties that no trace of the contract could be found in the work done, and then stated to the jury that such facts, if true, might be considered by them “ as a circumstance tending to prove that said original contract had been mutually abandoned by the contracting parties.”
We think this instruction was faulty, and calculated to mislead the jury. The facts assumed not only tended to prove, but conclusively established, the abandonment of the contract; yet the instruction impliedly told the jury that the facts did not prove an abandonment of the contract, but only consti*337luted a circumstance which they might consider as tending to prove an abandonment, and that they might, notwithstanding the assumed facts, find that the contract was still in force and binding upon the parties. It also, we think, by fair implication, told the jury that any change in the work, or departure from the contract, less extensive and complete than that assumed in the instruction, would not be sufficient to establish the .abandonment of the contract. We think, as before stated, that the instruction was misleading and erroneous.
The appellee also contends that the appellant should not complain, because he might have corrected the instruction by asking the court to give further instructions to the jury. This may or may not be. It was the duty of the court to state the law correctly to the jury,.and if it failed to do this by an incorrect instruction, the injured party, without asking the court to correct its error otherwise than by exceptions, has his remedy by appeal to this court.
The appellee insists that the instruction was harmless, because there was no testimony in the case tending to show an abandonment of the contract.
It was claimed by the appellee that the appellant had entered into a special contract to build for him a house of certain dimensions and finish, for $275, and that the work sued for was done under this contract.
After stating the contract and his bid for the building of the house under it, the appellant testified as follows: “ The house I bid on is not the same house I did build. The house I bid on was to have 16 windows and 14 doors; no moulding — all plain work.' The house I did build had 20 windows and 28 doors, large and small; moulding on the base-boards and cornice; the windows and doors have mouldings and caps and many changes, and it was not the house I bid on by any means. I understood there was no contract.”
Under this testimony, had the jury believed it, they might have found an abandonment of the contract, and had they so *338found this court would not have disturbed the finding on the ground that there was no testimony tending to sustain it. Yet, if the jury regarded the instruction given by the court,, they could hardly have so found.
Per Curiam. — The petition is overruled.