
    No. 2093.
    Joseph Lallande v. Immer U. Ball.
    Where damages are claimed on a reconvcntional demand, the evidence must fix the amount ■with certainty and clearness.
    from the Seventh District Court, parish of West Feliciana. Miller, J.
    
      S. J. Powell, for plaintiff and appellant. Oollins & Lealce, for defendant and appellee.
   Howell, J.

This suit was before this court in March, 1868, and is reported in 20 A. 194, where the material facts are stated. This appeal is taken by plaintiff from a judgment allowing $1700 damages on the reconventional demand, as resulting from the purchase and erection of a saw mill, and the cost of lumber used in building necessary cabins on a plantation, for which the note sued on was gi ven in part payment. The. defendant lias asked that the amount which is credited on the judgment on the said note,'be increased to $2100.

Conceding defendant’s right to recover, under the pleadings herein, the damages allowed (which we do not consider definitively settled in the former opinion and decree of this court and upon which we express no opinion), the evidence does not entitle him to the sum fixed by the judgment nor to any particular sum. It is very clear that he is not entitled to the price paid for the saw mill, which the testimony shows was erected long after he was informed by some third person that the “ swamp tract ” was not included in his purchase, and which is still on his plantation. The fact that “ he has tried to dispose of it, but has found no sale,” does not prove that it hasno value. Nor should he be allowed the price paid for lumber used in building the cabins, for had he gotten it on the swamp tract as he expected, with the hands employed by him, it would have cost him something, and there is nothing in the record to show such cost, which should be deducted from the price or value of the lumber.

Such damages, if allowable, should be proven with some certainty.

It is therefore ordered that so much of the judgment appealed from as allows defendant seventeen hundred dollars damages on his recon - ventional demand, as set forth in said judgment, be reversed, and that said demand, as to the said specified damages, be dismissed.

It is further ordered that in all other particulars said judgment be affirmed, with costs in both courts.  