
    OSWALD vs. GODBOLD.
    1. The plaintiff cannot recover under the common counts, in assumpsit for use and occupation, when the proof shows that there was a special agreement between the parties, by the terms of which the plaintiff was to ’receive a specified quantity of lumber for the rent of the premises, and it is not shown that by the agreement any value in money was placed on the lumber.
    2. The statute of this State (Clay’s Digest 505, § 1) does not embrace those contracts for rent which contain a reservation of rent to be paid in specific articles, the value of which is not ascertained by the agreement of the parties.
    ERROR to tbe Circuit Court of Mobile.
    Tried before tbe Hon. L. Gibbous.
    Tbe plaintiff brought an action of assumpsit in tbe Circuit Court of tbe county of Mobile against tbe defendant, and filed bis declaration containing five counts.
    Tbe first count avers, that plaintiff rented to defendant a saw and grist mill for tbe year 1845, for which defendant agreed to pay him 150,000 feet of assorted lumber, to be delivered in tbe city of Mobile; which be failed to deliver, to plaintiff’s damage $1000.
    Tbe second count is for use and occupation of tbe mills by tbe defendant, and an undertaking on bis (defendant’s) part to pay tbe plaintiff $1500 therefor.
    Tbe third is in quantum meruit for use. and occupation of tbe mills, with averment that they were reasonably worth $1500.
    Tbe fourth sets out a special contract between tbe parties as follows: “And whereas tbe said plaintiff being tbe owner of a certain, saw and grist mill in Mobile county, situated’on Cole Greek, with tbe appurtenances, and tbe said defendant being anxious to rent tbe same from tbe said plaintiff, tbe said defendant on tbe 23d day of January, 1845, in tbe county of Mobile, in consideration that tbe said plaintiff, at bis, defendant’s, request, would rent to him, tlie said defendant, tbe said saw and grist mill, witb its appurtenances, for one year then next ensuing, and would put tbe said mill in repair, and keep it in repair during tbe said year; be, tbe said defendant, then and there promised to said plaintiff, in consideration thereof, to deliver to him, in Mobile, one hundred and fifty thousand feet of merchantable lumber; and tbe plaintiff avers, that thus confiding in tbe said promise of tbe defendant, be, tbe said plaintiff, on tbe day and year last aforesaid, did rent to tbe said defendant tbe said saw and grist mill, witb its appurtenances, for one year from tbe said 23d day of January, 1845, and did put the said mill in repair, and kept it in repair for tbe said year for which it was rented to the defendant, and did then and there do all things which were to be done, and tbe said defendant then and there went into possession of tbe said mill, witb its appurtenances, and bad, used and enjoyed the same for twelve months then next ensuing; yet, tbe said defendant, not regarding bis said promise and undertaking, failed, refused and neglected, although often requested so to do, to deliver to the said plaintiff the one hundred and fifty thousand feet of merchantable lumber, in Mobile, in pursuance to his said undertaking and promise, to the plaintiff’s damage one thousand dollars.”
    Tbe fifth is a mixed count, in which tbe money counts, generally, are blended.
    The breach is for failing to deliver the lumber in Mobile, and failing to pay tbe money claimed.
    On tbe trial, as appears by tbe bill of exceptions, tbe plaintiff introduced evidence proving that one Johnson, (tbe witness,) a short time before tbe defendant leased tbe mill, made an agreement witb tbe plaintiff to lease bis mill on Cole Creek, in Mobile county, for one year; he was to give 150,000 feet of merchantable lumber for tbe rent. Witness stated that lumber at the mill was worth $9 per thousand; tbe contract between plaintiff and witness was never perfected; tbe witness further stated that defendant told him, that be (defendant) bad rented tbe mills for one year, on-the same terms that witness was to get them, except that the dam was to be raised; how much witness did not know. The testimony was doubtful, whether the lumber, by the contract, had a fixed value at the mill or not. It was also proved, that the defendant went into possession of the mill in January, 1845, and used it for the year, when he delivered it to the plaintiff.
    The plaintiff then offered to prove, under the common counts, the value of the mills for one year by way of rent, and stated, that in such proof he would keep within the amount proved on the special contract. The defendant objected to this proof, and the court sustained the objection, unless the complainant would show that the contract itself contained a rule by which the damages would be estimated; to which the plaintiff excepted.
    Defendant then proved, by the millwright who had been employed by the plaintiff to work on the mill during the year, that he heard both plaintiff and defendant say, that the plaintiff was to rent the defendant the mill for a year; that he was to raise the dam two feet and repair the-mill, for Avhich, defendant was to give him 150,000 feet of lumber; he also proved that defendant had delivered to the plaintiff nearly 100,000 feet of lumber, and since the lease was out had paid him $125 in cash. He proved that the dam was not raised, and that the mill was only partially repaired; and that the defendant had been damaged to a great extent, on account of the dam not being raised.
    The plaintiff, by way of rebutting proof, offered evidence showing that the dam of the mill had been raised two feet, and the repairs made; by another witness, who had been employed by defendant about a week, in the commencement of his tenancy, that the dam had been raised a foot, and he never heard the defendant complain that the dam had not been raised. Plaintiff further proved, that he was frequently at the mills while defendant occupied and used them, was often with him, and never heard him complain that the dam was not raised and the repairs made; he seemed to be satisfied with his bargain. ,
    The plaintiff again offered to prove what the use and occupation of the mills were worth, during the year defendant rented them, and that they were worth fifteen hundred dollars. Tbe defendant objected to tbe introduction of tbis proof under tbe common counts; tbe court sustained tbe objection, and .tbe plaintiff excepted.
    Tbe court then charged tbe j ury, “ that it was left to them to say wbat tbe contract was between tbe parties; that if they found, that it was, that tbe lumber, by tbe contract, bad a value put upon it at tbe mill or elsewhere, then they could consider tbe defendant’s and plaintiff’s evidence on tbe common counts, in case such evidence did not support tbe special count on tbe contract, and plaintiff would be entitled to recover on said counts if any thing was due him on bis contract with tbe defendant. But if they found tbe lumber, paid tbe plaintiff by tbe defendant, bad no fixed value by tbe contract, then tbe plaintiff’s evidence could not be applied to tbe common counts, and tbe plaintiff must recover on bis special count on tbe contract, as declared upon in tbe declaration” or not at all. To tbis charge tbe plaintiff excepted.
    Tbe plaintiff assigns for error the matters set forth in tbe bill of exceptions.
    JNO. A. CAMPBELL, for plaintiff in error:
    Tbe evidence excluded by tbe Circuit Court, and tbe charge given by^tbe court, upon tbe application of the evidence to the counts of the declaration, were in contradiction to tbe statute, Clay’s Digest 505, title Bent. 1 S. & P. 294; I Ala. Bep. 585 ; 7 Wend. 107; 18 John. 240.
    Bequiek, contra:
    
    Where tbe damages consequent upon tbe breach of a contract are unliquidated, no recovery can be bad upon tbe general counts, but tbe plaintiff must stand or fall by bis special count. 1 Stew. 12; 8 ib. 190; 7 Ala. Bep. 952; 10 ib. 830 ; II ib. 273; 12 ib. 221; ib. 726.
   LIGON, J.

It was not insisted in tbe argument, that under tbe state of tbe pleadings and proof disclosed by tbe record, tbe plaintiff in error is entitled to recover on tbe special contract set out in bis declaration; but tbe error chiefly complained of is, tbe refusal of tbe court to allow tbe proof of tbe value of tbe premises by way of annual rent, to go to tbe jury on tbe common counts.

In Snedicor v. Leachman, 10 Ala. Rep. 330, it was beld by tbis court, that when tbe plaintiff declares on tbe common counts, be cannot recover, if tbe proof shows there was a special contract between the parties that tbe plaintiff was to receive specific articles in payment, and tbis, notwithstanding tbe testimony concerning tbe special contract, did not disclose all its terms. The court in .that case takes tbe true distinction between those cases of tbis class, in which a recovery may be bad on tbe common counts, when a special contract is shown to exist, and those in which it cannot. In that case, it is said, that “tbe plaintiff may recover on tbe common counts, although there is a special contract, whenever, by tbe breach of tbe contract, tbe plaintiff is entitled to recover a sum in numero ; that is, where tbe damages for tbe breach of contract are liquidated, and require nothing to be done but a mere calculation.”

The same rule bad been previously acted on in Sprague v. Morgan, 7 Ala. Rep. 952, and has since, in Aikin v. Bloodgood, 11 Ala. Rep. 221, Anderson v. Rice, at the last term, and several other cases which it is needless to cite; and we have no doubt, it is tbe true rule in such cases.

In tbe present case, tbe proof clearly shows, that there was a special agreement between tbe parties, by tbe terms of which the plaintiff was to receive one hundred and fifty thousand feet of lumber for the rent of the mills; but the testimony does not show, that by that agreement any value in money was placed on this lumber, by the hundred or by the thousand feet, so that, by a mere calculation, the jury could ascertain the plaintiff’s damage. On such contracts, the law fixes no invariable rule by which the damages are to be measured. If the failure to deliver the lumbér had put the plaintiff to no other inconvenience than the mere disappointment arising from such non-delivery, the measure of damages would be, the value of the lumber at the agreed place and time of delivery ; whereas, if he were engaged in building, and his workmen were delayed and hindered by such non-delivery, the measure of damages would be increased in proportion to the actual injury sustained. It presents, then, a case of unliquidated damages, and the proof offered by the plaintiff, and ruled out- by the court, was clearly inadmissible under the common counts.

The counsel for the plaintiff insists, however, that although the. rule alluded to may be considered as the true one in ordinary cases, yet our statutory regulations, in relation to actions for the recovery of rent, will exempt this case from its operation.

That statute provides: “It shall be lawful for any person or persons to whom any rent may' be due, or the executors or administrators of such person, when the demise is not by deed, or if by deed, not specifying the rent to be paid, to recover a reasonable satisfaction for the tenements occupied by the defendant, in an action on the case for the use and occupancy of what was held and enjoyed; and if, on evidence on the trial of such action, any parol demise reserving certain rent, or demise by deed, but no rent therein agreed on shall appear, in either case, the plaintiff in such action shall not be nonsuited, but shall recover a reasonable satisfaction for the tenements occupied.”

It is evident, that the legislature intended to prevent non-suits in those cases of parol demise, reserving rent to be paid in money, in which the special agreement between the parties was inartificially set out, or wholly omitted by the pleader in his declaration; and in those in which assumpsit, and not covenant, was brought, when the demise was by deed, which did not ascertain the amount of such rent. It is also evident, that its terms were never intended to embrace those contracts for rent, which contained a reservation of rent to be paid in specific articles, the value of which was not ascertained by the agreement between the parties.

There is nothing in the cases to which we are referred by the counsel for the plaintiff in error, to conflict with these views.

There is no error in the record, and the judgment must be affirmed.  