BOYDEN, J.
In this case the defendant was the owner of a furnace in the county of Gaston, which required five hundred bushels of coal daily, to run it to its full capacity, and the plaintiff agreed to deliver to the defendant daily at his furnace from 500 to 1,000 bushels of coal. The plaintiff was to cut the wood on the defendant's land, burn the coal and deliver it, and the defendant was to furnish weekly, money to pay the wood-choppers, and to pay for the coal as it was delivered at the furnace. This contract was made in writing on the 16th day of November 1863. There was no time fixed in this contract when the plaintiff should commence cutting wood or delivering the coal. There was a quantity of wood cut at the time the contract was made, how much does not appear, which the plaintiff was to use in making coal, but the coal made of this wood was to be delivered at a less price than that fixed in the contract. It does not appear that there was any complaint, that the plaintiff did not commence cutting wood and delivering coal in reasonable time; but it does appear in the testimony of the plaintiff himself that on no one day did he deliver the minimum quantity of coal, he had contracted to deliver, and there is evidence tending to show that for lack of the proper quantity of coal, the defendant could use but one of his tuyers; and that by using but one, he could not make as much metal by a ton and a half per day, as he could have made, had the plaintiff furnished the minimum quantity of coal agreed to be delivered daily; and that the metal at the time was worth from thirty to forty dollars per ton.
When the defendant failed to furnish the money weekly to pay the wood-choppers, or to pay for the coal as delivered does not appear; nor does it appear when the plaintiff complained if ever, before he ceased coaling, that the money was not advanced to pay the wood-choppers and for the coal as delivered.
There is no allegation in the complaint, that the plaintiff ceased his coaling operations, because the defendant failed to furnish weekly, the money to pay the wood-choppers and for the coal as delivered; nor is there any complaint on the part of the defendant that the plaintiff stopped coaling when he did, The commencement of the plaintiff's operations and their stoppage seems to have been by mutual consent of the parties.
But there is an allegation in plaintiff's replication to defendant's counter claim, that defendant is entitled to no damages for the reason that the non delivery of the minimum quantity of coal daily, was caused by the defendant's failure to advance weekly money to pay the wood-choppers, but even in this reply there is no allegation that the coal was not paid for as delivered.
The defendant in his counter claim demands large damages for the non delivery daily of the minimum quantity of coal. There was evidence tending to show that defendant had sustained damage by this failure on the part of the plaintiff.
The stipulations in the contract, we think are dependant stipulations, and the counter-claim is the proper subject of a cross action in this case.
His Honor charged the jury as follows, and this is his entire charge on this complicated case: "That if the plaintiff's contract, was not complied with, he could not recover on it; but that the law did not require impossibilities, and that plaintiff was entitled to reasonable time to prepare for executing it; that if plaintiff was prevented by defendant's failure on his part from furnishing the coal as provided in the contract, he was nevertheless entitled to the value of the articles delivered, and received by the defendant: that, if after the work ceased, any agreement was made for payment, between the parties, then the plaintiff was entitled to recover accordingly." This was said without any reference to the counterclaim of defendant. In this we think there was error.
"His Honor then handed to the jury a slip of paper in these words:
Plaintiff claims balance, ...................... $ 55.77 Wood and coal, ................................. 560.39 Interest (left with the jury,) ............ 64.90 ------ Claim and interest ............................. 683.06
Defendant's counsel objected to this paper being handed to the jury.
The defendant's counsel then called the attention of the Court to the fact that he had not charged as to the counterclaim. In reply to this suggestion, His Honor told the jury: "That if the plaintiff failed to perform his contract he could not recover, and if defendant failed he could not recover," and without further remarks the jury retired, and in their verdict for the plaintiff found the exact amount stated in the slip of paper handed to them.
His Honor in his charge to the jury, gave them no instructions as to the main points in controversy; to-wit: whether the defendant was entitled to have his counter claim considered by the jury, and if so what damages was he entitled to, or was he entitled to any damages in his counter-claim because as alleged in plaintiff's replication, his failure was caused by the neglect of the defendant to advance, weekly, the money to pay the wood-choppers. These seem to be the principal points in controversy, there being no allegation that the plaintiff did not commence in reasonable time, or that he did not cease operations by the consent of the defendant.
We think His Honor's charge in regard to reasonable time was well calculated to mis-lead the jury, when he informed them that the law did not require impossibilities, and that he was entitled to reasonable time to commence the execution of his contract, as it was as much as to say to the jury, that if plaintiff had contracted to deliver daily from five hundred to one thousand bushels of coal, he would be excused from the delivery, upon the ground that it was impossible for him to do so.
We think His Honor was also in error in delivering exhibit E. to the jury. Watson v. Davis, 7 Jones, 178, and Outlaw v. Hurdle and others, 1 Jones, 150.
There is error. Let this be certified.
PER CURIAM. Venire de novo.