delivered the opinion of this Court:
This suit was brought on a contract to construct two Centripetal Momentum Water-wheels and properly connect them with the machinery of a Cotton Mill. These wheels were to take the place of an over-shot wheel then used in driving the mill, and in the language of the contract, wore “guaranteed to work from twenty to one hundred and ten horse-power with a full head of water, and to effect a saving of twenty per cent, or one-fifth of the water of the over-shot that was in.” Another clause of the contract shows that the contracting parties contemplated the construction of wheels that *70should bo sufficient to run and drive the machinery of the mill.
After the admission of proof on the part of the appellants that the wheels were put in place and connected with the machinery to be driven, and that their power reached the ■maxwi'um called for by the contract, evidence was admitted on the other side, without objection, showing that the displaced over-shot wdieel was of eighty-five and seven-tenths horse-power with a full head of water, and sufficient to drive all the machinery of the mill; and further, that the new wheels, with a like head of wrater, were wholly insufficient for that purpose. The written computation of the power of the over-shot wheel, made by Conner one of the appellants, ■and to the admission of which, the first exception was taken, was then allowed by the Court to be read in evidence. The paper appears to be appended to, or to be part of a paper endorsed “ Proposals,” which the appellants insist was merged in the contract subsequently made, and for that reason was not admissible as evidence in an action on the contract.
The appellants assume, as the ground of their objection, that this paper tended to vary the contract for the construction of the new wheels, and it must be conceded that if it was offered for that purpose, the objection would be fatal.
The specific purpose for which this evidence was offered is not stated in the bill of exceptions — being offered generally, if it was admissible for any purpose, there was no error in ■admitting it.
It was certainly admissible in connection with other evidence of the same character, for the purpose of showing that the contract had not been performed; and in that view there was no error in admitting it. It contained the calculation of the capacity or power of the over-shot wheel, made by Conner himself; and as an admission by Conner of this fact, of which proof by the estimate of other witnesses was intro*71dneed without ohjoetion. If was admissible to show the actual power of lito over-shot wheel, and by that means enalbo the jury to judge whether iho new wheels worked, with the power guaranteed In ike contract.
(Decided June 1st 1866.)A review ci die prayers granted and rejected, contained' in the second exception, has satisfied us that the cause was submitted to the jury under proper instructions.
The right of recovery depended upon the performance of the contract; and the rejected prayers offered by the appellants appear to have been founded on a construction of it that necessarily limited the jury in passing upon the question of its performance to a consideration of their evidence alone.
This, in our opinion, “was a mistaken, theory, not only as to the meaning of the contract, but in regard to the evidence from which its performance was to ho found.
The question of performance was to ho determined by the jury upon a consideration of all the evidence in the case.— As we understand the contract, the instructions given were as favorable as the appellants had a right to ask; they are expressed in the language of the contract, or at least so nearly so, that the only mistake the jury could make, was in the way of construing them in the appellants favor. The judgment must be shinned.
JvJlqmerd affummd.