¶1The complaint contained four counts; the first declaring on a special contract, and the remaining counts being the common counts. The general issue was pleaded. The contract sued was not set out in the complaint, nor in substance, nor was there any formal allegation of its breach. The sum sued for was in the complaint claimed under a contract made by defendant’s intestate with plaintiffs. By the express terms of the contract, in a certain named contingency, the amount that would be due the plaintiffs was fixed. The contract was in evidence, and there was evidence tending to show that the plaintiffs did not cut a sufficient number of cross-ties from the deceased’s land at the stipulated price of 5 cents a tie to amount, to the $800 paid defendant’s intestate by the plaintiffs; and in such case, by the express terms of the contract, the defendant’s intestate was to refund to the plaintiffs an amount equal to such deficiency. It is of no importance whether the shortage in the cross-ties cut. from the land was on account of a lack of tie timber on the land in question, or because the plaintiffs were prevented from cutting by the defendant’s intestate. There was evidence tending to *554show that, plaintiffs were by the defendant’s intestate ¡stopped from cutting on the land before the expiration of the time fixed in the contract,.
¶2The court erred in refusing to give charge 3, requested by the plaintiff. . There was no error in the refusal of other charge's. For the error pointed out, the judgment must be reversed, and the cause remanded.
¶3Reversed and remanded.