
    R. Weathersbee vs. John S. Green.
    Agreement betwee'n J. S. and R. W., by which J. S. bound himself to allow R. W. to obtain from a tract of land, described, all trees of size sufficient to make timber of a certain description; and R. W. bound himself to pay one dollar and fifty cents per tree on the 1st of .October, 1854, and to complete tho transportation of the trees by 1st January, 1855. Meld, That J. S. was not limited in recovering upon the contract to the number of trees actually cut and hauled off by R. W., but might recover damages for such trees as were left upon the land.
    BEFOEE WHITNEE, J.,-AT BAENWELL, SPEING- TEEM, 1856.
    The report of his Honor, the presiding Judge, is as follows:
    “ Plaintiff’s demand was admitted, being a note for three hundred and fifty dollars, drawn by defendant, 4th September, 1854, at one day after date.
    “Defendant set up a discount founded on an agreement in writing, a copy of which accompanies this report.
    
    “ Under this agreement plaintiff had cut and hauled away one hundred and eleven trees of the description set forth, and for them the defendant was allowed at the. rate of one dollar and fifty cents per tree, with interest as claimed.
    
      “ He proved one hundred and forty-five trees yet standing within the limits of the tract, of the dimensions specified in the contract, and claimed to recover the farther sum of one dollar and fifty cents for each tree, with interest, from the day of payment named. Passing by differences of opinion that might exist, and there was some testimony on these points as to crooked trees, decayed trees, and trees with knots and limbs, and yet of dimensions answering the terms in the agreement, I did not think a just construction of the contract covered any such demand. There was no evidence offered on either side of the present value of trees yet standing on the premises. Though the plaintiff had secured a privilege, I thought he had incurred an obligation only to pay for such as he did cut-by a day fixed, with an additional obligation to complete transportation, by a further day, of such as he did cut down. The jury being instructed accordingly, the remainder of the discount set up was rejected.”
    The defendant appealed on the grounds:
    1. Because his Honor charged the jury to allow the defendant only for the trees he carried away from the land.
    2. Because his Honor should have charged the jury to allow the defendant for the trees carried away, and for those remaining on the land as well.
    8. Because, according to a correct construction of the contract, it was an entire contract for the sale of all the trees answering the description, and his Honor should have charged the jury, that the plaintiff had broken the contract by not paying for all the trees at the time fixed by the contract; that the measure of damages for such breach was the amount which the defendant would have received if the contract had been faithfully performed, as the plaintiff had failed to prove that the trees remaining on the land were worth any thing to the defendant. \
    
      Aldrich, for appellant.
    
      Owens, contra.
    
      
       The following is a copy of the contract:
      
        “ Barnwell District, March 13, 1854. This indenture witnesseth that I, Riley Weathersbee, am firmly held and bound unto J. S. Green, for the sum, and in the manner hereinafter expressed, according to certain conditions, viz.: J. S. Green binds Himself and assigns, to allow Riley Weathersbee to obtain from a tract of land lying between lands of Jordan and Hansford Heath, containing seventy acres, more or less, all trees which will square twelve inches, and thirty-one feet long and upwards, according to timber measurement, and all trees squaring fourteen inches and twenty-six feet long and upwards, measured as above. Riley Weathersbee binds himself and assigns to pay the sum of one dollar and a half per tree, and to pay for the same.on the 1st of October, 1854, and to complete the transportation of the trees by tbe 1st of January, 1855. „ “ Riley Weathersbee,
      “J. S. Green.
      “ Test. Jesse Green."
    
   The opinion of the Court was delivered by

Whitner, J.

The discount offered by defendant was founded on an entire contract, and the range of inquiry proper for the jury was too much restricted by the construction given to it by the Judge on Circuit.

The actual damage occasioned by the failure of plaintiff to perform his part of the contract, constituted the true measure. An impression that the verdict may not have been varied on the case made, even on a more enlarged inquiry, may not be well founded; because we cannot see this with certainty it is proper to send the case back for a re-hearing.

The defendant, as affirmant, will of course furnish the evidence on which he rests for a larger allowance than that heretofore conceded. In granting the new trial, it is not intended to intimate defendant’s right to recover the full value of trees remaining on his land, as though they had been likewise cut and hauled away. In the forest their value may be yet as great as the standard fixed by the agreement. Those trees selected and removed, may likewise have fallen within the same estimate. These, and inquiries of .like import springing out of the contract, are questions for the jury.

The motion for a new trial is granted.

Wardlaw, Withers, Glover and Munro, JJ., concurred.

O’Neall, J., absent at the argument.

Motion granted.  