
    JOHN D. DEBERRY v. JOHN YOUNG.
    (S. C., Thomp. Cas., 76-78.)
    Jackson,
    April Term, 1851.
    CONTRACT. Measure 'of recovery for breach of; cross action for damages.
    Where the plaintiff agreed to put in a water wheel to defendant’s sawmill which would cause it to cut 1,500 feet of lumber per day, and did put it in in accordance with the contract, the plaintiff would be entitled to recover the $100. If the new wheel would not cause the mill to cut more lumber than before, and added no value to the mill, the plaintiff could not recover anything. If the new wheel caused the mill to saw more than before, thoug-h not the quantity promised, the plaintiff would be entitled to recover in proportion to the extent of the benefit actually conferred as compared with that contracted for. [On this question, see Code, sec. 4639, subsecs. 2 and 3, and notes 16-19; Parker v. Steed, 1 Lea, 206, and cases there cited; Gibson v. Carlin, 13 Lea, 440, 448. See also Meigs’ Digest, sec. 244, subsec. 5; see. 769, subsec. 5; sec. 1130; sec. 1148; sec. 2491.] If the wheel 'was a real injury to the mill, the defendant would be entitled in a cross action to recover damages from the , plaintiff to the extent of the injury sustained. [On tbe right of cross action, see notes 15-19, and 40 under sec. 4640 of the Code.]
    The case is stated in the opinion of the court.
   McKinney, J.:

Young, the plaintiff in the action, declares in the second count upon a contract to the effect, that for the sum of - $100 he would make and put in a water wheel to a sawmill of the defendant, which would cause said-mill to cut 1,500 feet of lumber per day, with a head of five and a half feet of water — which head of water the defendant undertook to supply. This action is brought to recover said sum of one hundred dollars.

If, in accordance with the contract, the wheel was so constructed and attached to the mill, that oh the stipulated head of water being supplied by defendant, and proper attention on his part, the mill would have cut 1,500 feet per day; and its failure to do so was.in consequence of the defendant’s neglect to. perform his duty, the plaintiff would be entitled to recover the full amount agreed to be paid.

But if without fault or breach of the contract on the part of the defendant, the mill did not perform according to the plaintiff’s undertaking by reason of his unsldlfuln'ess, negligence, or failure' to do nil that on his part he was bound to do, whether he would be entitled to recover, and if so to what extent, would depend upon circumstances.

If the value of the mill to. the defendant wasi in no respect increased by the plaintiff’s labor and materials furnished — that is to say, if it would not cut more lumber after the new wheel was attached than before, the plaintiff would not be entitled to- recover anything.

And if, in fact, the mill was really injured — that is, made less valuable or incapable of cutting as much.as before — to the extent of the damage thus sustained, the defendant would be entitled in a cross action, to recover damages from the plaintiff. But if the mill was made to saw more than before, by reason of the attachment of the new wheel, though not the quantity promised by the plaintiff; to the extent that the defendant was thereby benefited, by the labor and materials of the plaintiff, retained and used by the defendant, the plaintiff would be entitled to recover in this action; and the measure of the recovery should be the extent of the benefit actually conferred upon the defend’ant, compared with the benefit stipulated for by the contract.

The judgment will be reversed on the ground that the legal principles governing the case are not stated in the charge of the circuit court with sufficient accuracy, and the cause be remanded for a new trial.

Judgment reversed.  