1 THOMPSON 76 - Deberry v. Young

McKinney, J.:

¶1Young, the plaintiff in the action, declares in the second count upon a contract to th6 effect, that for the sum of $100,00 he would make and put in a water wheel to a saw mill of the defendant, which would cause said mill to cut 1500 feet of lumber per day, with a head of five and a half feet of water — which head of water the defendant undertook to supply. This action is brought to recover said sum of one hundred dollars.

¶2If, in accordance with the contract, the wheel- was so constructed and attached to the mill, that on the stipulated head of water being supplied by defendant, and proper attention on his part, the mill would have cut 1500 feet per day; and its failure to do so was in consequence of the defendant’s neglect to perform his duty, the plaintiff would be entitled to recover the full amount agreed to be paid.

¶3But if without fault or breach of the contract on *77the part of the defendant, the mill did not perform according to the plaintiff’s undertaking by reason of his unskilfulness, negligence, or failure to do all that on his part he was bound to do, whether he would be entitled to recover, and if so to what extent, would depend upon circumstances.

¶4If the value of the mill to the defendant was in no respect increased by the plaintiff’s labor and materials furnished — that is to say, if it would not cut more lumber 'after the new wheel was attached than before, the plaintiff would not be entitled to recover any thing.

¶5And if, in fact, the mill was really injured; that is, made less valuable or incapable of cutting as much as before; to the extent of the damage thus sustained, the defendant would be entitled in a cross action, to recover damages from the plaintiff. (1) But if the mill was made to saw more than before, by reason of the attachment of the new wheel, though not the quantity promised by the plaintiff; to the extent that the defendant was thereby benefited, by the labor and materials of the plaintiff, retained and used by the defendant, the plaintiff would be entitled to recover in this action; and the *78measure of the recovery should be the extent of the benefit actually conferred upon the defendant, compared with the benefit stipulated for by the contract.

¶6The judgment will be reversed on the ground that the legal principles governing the case are not stated in the charge of the Circuit Court with sufficient accuracy; and the cause be remanded for a new trial.

¶7Judgment reversed.

¶8 Hughs v. Cannon, 1 Sneed 622; Pettee v. Tenn. Mfg. Co., 1 Sneed 381; Whittaker v. Pullen, 3 Humph. 476-468; Porter v. Woods, 3 Humph. 56,62; Elliott v. Wilkinson, 8 Yerg. 411-416; Irwin v. Bell, 1 Tenn. 485; Stump v. Estill, Peck, 175; Harrison v. Chilton, 5 Yerg. 293,4; Crouch v. Miller, 5 Humph. 586,7; Sample v. Lomey, 1 Tenn. 85, 89.

¶9As to compensation for improvements made by disseizee in certain cases, see Townsend v. Shipp’s heirs, Cooke, 294; Act of 1813, ch. 24; (Code 3259-3261; ) Bristo v. Evans, 2 Tenn. 341; McKinly v. Holliday, 10 Yerg. 477; Mathews v. Davis, 6 Humph. 324; Jones v. Perry,, 10 Yerg. 59; Avent v. Hord, 3 Head. 459. And see King’s Digest, Titles, Bents and Improvements, where the decisions upon the right to recover for improvements upon another’s land, as well as the statutes of Tennessee on this subject are digested.