
    Haskell et al. vs. Hunter et al.
    
    Error to Ionia Circuit,
   Opinion by

Cooley, J.

Held, That the Circuit Court erred in directing the jury to deduct the 18,200 feet of lumher received by the plaintiffs from the whole amount to bo delivered, when they entered upon the computation of damages. The effect was to prevent the plaintiffs from recovering .in respect to this portion of the timber as iff' it had been delivered in compliance with the contract, and accepted by the plaintiffs in satisfaction of the undertaking of the defendants to that extent. But. the record shows that it was not delivered as agreed, and.that the plaintiffs were subjected to a heavy bill for freight iu eonsoqucucc ; and there is nothing to show that there has been any waiver by the plaintiffs of their right to be compensated for the loss sustained by this breach of the agreement.

The Court also erred in instructing the- jury that ill getting at the proper measure of damages in respect to the lumber not delivered, they must allow the plaintiffs only the .difference between the piice they were to pay‘for the. lumber, and the wholesale price at the place of delivery. The true question was not one of wholesale or retail price, but what it would have cost the plaintiffs to procure at the point of delivery and at the time when it was proper to supply themselves lumber of the kind and quality they were to receive on the contracts, and deducting the contract price from the cost.

Judgment reversed and a new trial .ordered.  