
    John Whalon and John Gowan, Plaintiffs in Error, vs. Cyrus Aldrich, Defendant in Error.
    ERROR TO TH3 DISTRICT COTJRT OR HENNEPIN COUNTY.
    Where a contract ia enterod into by which one party agrees to drive certain logs from one ■point to another, and no time is specified within which they are to be delivered at the point of •destination, the contract must bs performed within a reasonable time, under all the circumstances .attending and influencing the subject matter of the contract.
    A Defendant by pleading a counter claim for damages for a breach of a contract which is the subject of tbs action, admits a claim against him on the part of the Plaintiff, which he avoids by his counter •claim, and by so pleading he tenders an issue upon ail the equities existing between hiin and the Plaintiff, arising out of the contract, and must abide by that [issue, whether he be benefitted or prejudiced thereby. He cannot, after an examination ofsuchiBSuo, fall back and claim to defeat any recovery against him on the plea of a non-performance of the contract.
    Whera the Plaintiffs should have delivered the logs in the season of 1857, but did not deliver them a3£ until the next year, and they were received by the Defendant, the measure of damages for the mon-delivery at the proper time is, the difference between the market value of the loga when ¿hey should have been delivered, and when they were actually delivered at the place of delivery. What it would have cost to have driven them, after the season for driving had passed in 185^, «cannot, in any manner, enter into or influence the measure of the damages.
    Points and Authorities of. Plaintiffs in Error.
    I. — The Oonrt below committed error in receiving testimony in regard to the stage of water upon the streams where said .logs were situate, without first proving the express contract in •their'answer.
    II. — The Court below committed error in receiving testimony (see second exception,) as to the cost of driving that year the logs left after driving season of 1857. 3d Rill, 333; 14th John., 170/ 15th do., 24; 81s£ Wend., 342; sec. bedgwicTc on Damages, Zd Ed., pages S3 and 34.
    III. — The verdict is against evidence, and the weight of evidence, and should be reversed.
    
      L. E. Thohpson, Counsel for Plaintiffs in Error.
    Smith & Gilman, Counsel for Defendant in Error.
   By the Court.

Flandrau, J.

The decision of this case has been delayed- by reason of the time for the filing of the brief for tbe Defendant in Error baying been extended. Tbe counsel for tbe Defendant in Error complains that tbe abstract of tbe return furnished to us by bis adversary “ does not state-tbe facts and issues clearly,” and asks that we refer to tbe original return. On application to tbe clerk for tbe original record, we are informed tfyat it was taken from the files by tbe counsel for tbe Defendant in Error, and has been lost. We are, therefore, confined to the abstract in coming to an understanding and decision of the-case.

Rule 6 of this Court provides “ that after filing, no paper-shall be taken from the office, uffiiess by consent of parties, or order of a court or a judge thereof.” We are bound to presume that tbe record in this cace wás taken from tbe files by consent of tbe parties, as we find no order permitting it. Wo. have given instructions to tbe Olsrk in future not to allow any paper to be taken from bis office, unless upon tbe order of tbe court or one of the judges, and from the Sling of this decision Rule 5 will be considered as modified accordingly.

The contract upon which the action is founded in legal ef-. feet imposed upon the Plaintiffs ia Error tbe obligation to deliver tbe logs in tbe lower boom, of the Bt. Croix Boom Com- - pany, within a reasonable time, under all tbe-circumstanees' attending and influencing tbe subject matter of the contract. Tbe issues presented by tbe answer are: that tbe contract was . not performed, alleging that tbe logs should have been all .delivered in tbe year 1857, and that tbe Defendants bad suffered damage by reason of such non-performance, in tbe sum of $3,000. which it would have cost to drive the balance of tbe logs in 1857, and also -in the sum of $5,000 in. tbe depreciation in value of such . logs as were not seasonably driven down under tbe contract. By a supplemental answer be also sets up as a further counter claim tbe conversion of a quantity of tbe logs by tbe Plaintiffs since tbe commencement of the action of the value of $3,628.12. There was a reply by the Plaintiffs, which tbe case states admitted tbe sale by tbe Plaintiffs of logs to tbe amount of $1104.11,' which they bad applied on their demand against tbe Defends ant. It does not appear that tbe reply directly took issue upon tbe counter-claim for damages set up in tbe answer, but the case shows that upon the trial this matter was litigated as if it was at issue, and one of the points made by the Plaintiffs in Error in this Court is the admission of evidence in regard to these damages which was objected to by them. It is claimed here that there can be no error in this behalf, because all the allegations in the answer concerning damages are admitted by not being put in issue by the reply. Not being clearly advised as to this fact; by the case, and not having access to .the original record, we are compelled to collect the truth as best we can from the material we possess. It is clear that the counsel on the trial considered the question of damages in issue, and litigated it. Under this state of things, it is but fair that the case should be tried bere upon the same theory that obtained below. We therefore treat the question of ■damages as at issue.

It is also contended that tbe evidence offered by the Defendant, was not to show damages suffered by him in consequence of the non-performan.fi;e of the contract, but to establish the fact of non-performiaJQce. In this he is not sustained by tbe facts which appear ini tbe case. The witness, Heaton, first testified to the facts whi'ich tended to show the non-per. formance of the contract, and then as to the question of damages ; and upon the particular evidence, the admission of which is here claimed to bee.vror, the objection interposed by tbe Plaintiffs was based upon the ground that it was “not tbe proper measure of damages,” and as against this objection it was admitted.

The Defendant claims that as?- the issue of non-performance was found against the Plaintiff, he is debarred from a recovery in any 'event, and the error, if any, committed on the question of- the Defendant’s damages, must necessarily be immaterial, as the verdict was simply for the Defendant. In this position the counsel is answered by the case of Mason & Craig vs. Heyward, 3 Minn. R., 182, where this Court held that “ a Defendant, by pleading a counter-claim for damage ¡s for tbe breach of a contract which is tbe subject of the action, admits a claim against him on the part of the Plaintiff, which he avoids by his counter-claim, and by so pleading be tenders an issue upon all the equities existing between bim and the Plaintiff, arising out of the contract, and must abide by that issue whether he be benefitted or prejudiced thereby. He cannot, after an examination of all the equities under such an issue, fall back and claim to defeat any recovery against him, on the plea of non-performance of the contract.”

The evidence offered upon the subject of damages is, there- . fore, material, and if erroneously admitted will vitiate the verdict.

Two exceptions are taken -in the case. The first which goes to the introduction of evidence concerning the stage of water in the streams where the logs were in 1857, is not well taken. This question was very material upon the issue of whether the logs could have been driven down in the season of 1857, which fact was the foundation of the Defendant’s claim for damages.

Upon the second exception we think the Court erred to the prejudice of the Plaintiffs. The measure of damages was the difference between the market value of the logs when they were in fact delivered, and when they should have been delivered under the contract. Sedgwick on the Measure of Damages, 359-60. The Defendant, as the case shows, was entitled to have the logs in the St. Croix Boom, in 1857. Six or seven hundred thousand feet of them were not so delivered, but were delivered the next year, and received by the Defendant. This acceptance did not cut off any claim the Defendant had for the non-delivery of the logs at the contract time, but enters as an element into the question of what damages he was entitled to recover. Sedg. on Dam., 360; Story on Bailments, sec. 582, a. If the logs depreciated in value between 1857 and 1858, such depreciation was chargeable to-the Plaintiffs. The cost of driving was perhaps a proper subject of inquiry in arriving at the value of the logs in the St. Croix Boom; but in this case the question asked the witness was, “ What would it have cost to have driven down that year the logs left, after the driving season of 18571” and the answer was $3,500. We cannot see how this inquiry could be proper in any aspect of the case. It does not follow that because the Plaintiffs did not drive the logs according to their agreement, the Defendant had the right to charge them with the sum it would hare cost to got them down after the driving season was past, and especially as he had not in fact incurred that expense. It might have cost in some cases ten times their value to drive them after the season. The jury must have been misled by this evidence.

The bill of exceptions, as furnished us, contains none of the Defendant’s evidence, except the answers to the two questions which were objected to, and leaves us unadvised as to whether any more was offered or received on the subject of damages, or otherwise. Under such circumstances, if the testimony offered and admitted under objection could have been competent in any view of the case, there is no error, but we cannot see how the cost of driving the logs after the season of 1857, they having been subsequently driven and delivered, could properly influence the measure of damages in this case, in any view we may take of it.

The j udgment must be reversed and a new trial awarded,  