Statement of the Case.

"Q. How long have you been mining and been acquainted with ores?

"A. I have been mining since 1860.

"Q. Have you, during the same time, been acquainted with the milling of ores?

"A. Yes, sir. This mill at Columbus was the first silver mill I had been with; had been engaged in gold ores.

"Q. You have been acquainted to some extent with silver ores and silver mills?

"A. Yes, sir.

"Q. What was the value of these ores delivered at the Columbus mill in this raw state, as taken from the mine ready to be melted; what was the value for milling purposes?"

To this question counsel for plaintiffs objected, and the objection was sustained by the court; to which ruling the defendant then and there at the time duly excepted.

"Q. Do you know of any silver mills of the same kind in that neighborhood?

"A. No, sir; there are none in that immediate neighborhood. "Q. At what distance away do you know of any?

66

A. Up in Leadville. I do not know of any in operation now. There was one in operation the other side of Leadville a year ago, in Soda Creek.

"Q. Do you know of any silver mills being rented at Leadville?

"A. I do not know of any being rented in the State anywhere."

The defendant also introduced as a witness A. E. Smith, who, being duly sworn, testified that for twelve years he had been running stamp-mill works and quartz mills, and manufacturing assayers' supplies; that he had been in the employ of defendant, as foreman of the mill at Columbus, Colorado, from March, 1882, to December, 1883, and that he had aided in the erection of the mill in controversy. He also testified, in answer to questions as to the capacity and work of said mill, as follows, to wit:

"A. In the month of September (1882) we milled 721 cars of ore, which averaged 1200 pounds each, which makes an aver

Statement of the Case.

age of 13 tons a day. In October we run 977 cars, which averaged 1200 pounds each, averaging 19 tons a day and a fraction, and in November 117 cars, 22 tons per day; in December 902 cars, 18 tons a day.

"Q. Can you state the amount of ore that was milled during the months of March and April following?"

To this question counsel for plaintiffs objected on the ground that it was immaterial, irrelevant and incompetent, and the objection was sustained by the court; to which ruling and decision defendant excepted.

"Q. Can you give the amount of ore that was milled during the month of January?"

To this question counsel for plaintiffs objected on the ground last above given, and the court sustained the objection; to which ruling and decision of the court the defendant then and there excepted.

"Q. What was the capacity of that mill per day upon that ore from September 4 to December 31, 1882, but for the defects in the cylinder and conveyers which have been described? "A. We run 30 tons a day afterward.

"Q. With the mill in good working order, what would have been its capacity?

"A. 30 tons per day.

"Q. What was the worth of milling that ore per ton?"

Plaintiffs' counsel objected to this question on the ground that it was immaterial and not the proper measure of damages. By the court (to the witness):

"What was the cost?

"A. About six dollars per ton and a few cents."

The witness further testified as to the expense of operating the mill, the number and wages of the men, and cost of fuel, the number of days the mill was idle, wholly or partially, by reason of the defects complained of, the saving of wages by diminution of the working force when the mill was idle, and the extent to which employés were turned to other labor while the mill was not running, and was then further interrogated by counsel for defendant:

"Q. What wages would you have been compelled to pay to

Statement of the Case.

other men had you employed them to do that same work for which you paid these men, during the time the mill was stopped?"

To this question counsel for plaintiffs objected, and the objection was sustained by the court; to which ruling and decision of the court defendant then and there excepted.

The defendant also introduced as a witness one H. A. Hurlbut, who testified that he was a managing director of the defendant company in 1881 and 1882, and also testified, among other things, that one Riotti was a mining expert and a metallurgist, upon whom the defendant relied as to the best method of extracting silver from the ore; that upon his recommendation the white roasting furnace had been selected, and that defendant had employed the plaintiffs as machinists to erect it; that the defendant relied on said Riotti as to the proper process for the separation of the ores, but relied solely on the plaintiffs for the mechanical construction and erection of the machinery; and further, in answer to questions, testified:

"Q. What was Riotti directed or authorized to do about the specifications?

"A. He was authorized to give the draughtsman the incline of the hill the room there was into the base of the retaining wall- the relative positions of where the stamps and the roasting cylinder were to be and where the furnace should be placed in position, and to give relative positions and distances.

"Q. Had he anything to do with the mechanical construction of the mill?

"A. No, sir."

The plaintiffs recalled, in rebuttal, the witness William J. Chalmers, who further testified:

"Hurlbut said that Riotti had been engaged by the New York parties as consulting engineer, as they wanted to hold some one responsible for the working of the ores. We were notified to comply with Riotti's directions. In looking over the original plan of the furnace the conveyors were shown in the plan, but Riotti said he preferred . desired us to follow the drawing in making the furnace. This drawing showed the conveyors, as afterwards put in the mill. We

Statement of the Case.

changed the original specifications; they were never accepted by the company, they refusing to accept them. We had the acceptance of Riotti of the plans."

At the conclusion of the testimony the defendant requested the court in writing to give to the jury the following instructions on the right of defendant to recoup damages in said

cause:

"If the plaintiffs undertook to supply and put up, so it should be complete and in good running order, the mill or machinery mentioned in defendant's second defence, and entered upon the performance of such agreement, and if the machinery supplied proved defective and mechanically inadequate for the purpose intended, or was not complete nor executed in proper manner, or if the work was unskilfully performed, then, in this action, the defendant would be entitled to recover from the plaintiffs the damages actually sustained by reason of such failure of the plaintiffs to perform their agreement; and, in measuring the damages, if any, sustained by defendant, you may consider the loss of the use of the mill and machinery, either wholly or partially, resulting from such defects and unskilful performance; and any sums paid out by defendant in remedying defects and making repairs in such mill and machinery in consequence of such defects."

Which instructions the court refused to give, and to such decision and refusal the defendant then and there at the time duly excepted.

"In estimating defendant's damages in consequence of plaintiffs' breach of their undertaking, if you find there was such a breach, you may also consider the necessary and immediate loss of profits incurred by the defendant during the period when the said defendant was, by reason of the alleged defects, deprived of the use of such mill and machinery."

Which instructions the court refused to give, and the defendant excepted.

After the conclusion of the evidence and the argument of counsel in said cause the court, of its own motion, instructed the jury as to the law of said cause, and on the question of the measure of defendant's damages, the court gave certain in

Opinion of the Court.

structions, to the giving of which, and to each several proposition therein contained, defendant at the time duly excepted.

Mr. Henry Edwin Tremain, (with whom were Mr. Mason W. Tyler and Mr. James C. Spencer on the brief,) for plaintiff in error, cited: Kellogg Bridge Co. v. Hamilton, 110 U. S. 108; Western Union Telegraph Co. v. Hall, 124 U. S. 444, and authorities cited; Booth v. Spuyten Duyvil Rolling Mills, 60 N. Y. 487; Hadley v. Baxendale, 9 Exch. 341; Horne v. Midland Railway Co., L. R. 8 C. P. 131; Cutting v. Grand Trunk Railway, 13 Allen, 381; Simpson v. London & Northwestern Railway, 1 Q. B. D. 274; Pickford v. Grand Junction Railway, 12 M. & W. 766; Wilson v. Lancashire & Yorkshire Railway, 9 C. B. (N. S.) 632; Hinckley v. Pittsburg Steel Co., 121 U. S. 264, and cases cited; United States v. Behan, 110 U. S. 338, and cases cited; Fletcher v. Tayleur, 17 C. B. 21; Terra Haute &c. Railroad v. Struble, 109 U. S. 381; Rhodes v. Baird, 16 Ohio St. 573; Schile v. Brokhaus, 80 N. Y. 614; Hinckley v. Beckwith, 13 Wisconsin, 31; Davis v. Talcott, 4 Barb. 600.

No appearance for defendants in error.

MR. JUSTICE LAMAR delivered the opinion of the court. He stated the facts in the foregoing language, and continued:

The first and second assignments of error rest upon the same ground, and may be considered together. They are, first, that it was error for the court, upon the examination of the witness Chalmers, (who was also one of the plaintiffs,) to admit in evidence the paper handed him showing an itemized statement of account aggregating $2531.78. It is contended that evidence of this character, "an unproved copy of an unproved account," was inadmissible to show the alleged sale and delivery of merchandise; and, second, that the court erred in holding such inadmissible testimony to be sufficient evidence of an indebtedness to permit interest on it to be recovered, as testified to. The assumption of fact involved in these assignments, that the paper was admitted in evidence, is not sufficiently supported by the statement in the bill of exceptions.