
    Case 58 — PETITION ORDINARY —
    January 29.
    Wood v. Morgan.
    APPEAL PROM BARREN CIRCUIT COURT.
    T. Failure to answer, in action por damages, jury necessary. — The default admitting the cause of action did not authorize the court without proof and without a jury to adjudge damages.
    3. OPPER TO PERPORM NOT EQUIVALENT TO PERPORMANCE. — The refusal of an offer to perform services for a year was not equivalent to performance.
    The refusal will entitle the party offering to perform to recover such damages as he actually sustained, to be assessed by a jury on proof. (Chamberlins v. McCallister, &c., 6 Dana, 353.)
    N. A. Smith,.........For Appellant,
    CITED
    Civil Code, sec. 409. 15 B. Mon. 638.
    14 B. Mon. 393. 18 B. Mon. 316.
    1 Metcalfe, 558. 3 Metcalfe, 196.
    4 Metcalfe, 383.
   JUDGE ROBERTSON

delivered the opinion op the court.

The default admitting the cause of action did not authorize the court without proof and without a jury to adjudge damages. As adjudged in Chamberlins v. McCallister, &c., 6 Dana, 352, the appellant’s refusal to permit the appellee to perform the stipulated services for a year was not equivalent to performance, so as to entitle the appellee to recover the conventional price for full performance, but only entitled him to such damages as he had actually sustained, and which a jury ought to have assessed on proof.

Wherefore the judgment is reversed, and the cause remanded for further proceedings.  