order that there might be a judicial determin- preme court as in ordinary cases against the | "Approved, February 26, 1885." According to this construction of the Act, the plaintiffs were not entitled to judgment against the United States in any sum; for, if Collector Bailey and other revenue officers did nothing more than the law authorized them to do, neither they nor the Government would be liable in damages; while, if they acted illegally, they would be personally liable in damages, not the Government. The judgment is reversed, with directions to render judgment in favor of the United States. Mr. Justice Miller and Mr. Justice Field dissented. DAVID R. FRASER ET AL. (See 8. C. Reporter's ed.611–623.) Sufficiency of record-paper, when not in eri- It is evident that Congress intended to open the doors of the Court of Claims to the plaintiffs, so far as to permit them to sue the Government, unembarrassed by any defense of the Statute of Limitations, and to obtain an adju- | dication, based upon "the law and facts," as to the liability of the United States for the wrongs of which complaint is made. In other words, the jurisdiction of the Court of Claims was so enlarged as to embrace this particular demand and to authorize such judgment as, under all the evidence, would be consistent with law. Here, however, we are met with the suggestion that there is a general principle, appli- THE NEW YORK AND COLORADO MINcable, as this court said, in Gibbons v. United ING SYNDICATE AND COMPANY, States, 75 U. S. 8 Wall. 269, 275 [19:453, 454], Piff. in Err., to all governments, which "forbids, on a policy imposed by necessity, that they should hold themselves liable for unauthorized wrongs inflicted by their officers on the citizen, though occurring while engaged in the discharge of official duties." Did Congress intend to abrogate this principle so far as the demands of the present plaintiffs are concerned? Did it invest the Court of Claims with jurisdiction to render a judgment against the United States upon its appearing that the revenue officers transcended the authority conferred upon them by law, or had exercised their authority in such manner as made them personally liable in damages to the plaintiffs? There would be some ground for an affirmative answer to these questions if the statute had not required the court to pass upon both the law and the facts "as to the lia[455] bility of the United States." If the facts disclosed a case of unauthorized wrongs done to the plaintiffs by the revenue officers of the United States, the question, by the very terms of the Act, would still remain, whether the United States were liable, in law, for such damages as the plaintiffs had sustained. There would seem to be no escape from the conclusion that Congress intended that the liability of the Government should be determined by the settled principles of law. The only right waived by the Government was a defense based upon the Statute of Limitations. Erwin v. United States, 97 U. S. 392 [24:1065]; Tillson v. United States, 100 U. S. 43 [25:543]; McClure v. United States, 116 U. S. 145 [29:572]. 1. To obtain a reversal of a judgment it is neces- by him as a memorandum with which to refresh 4. Where the defendant failed to show by any ad- 6. Where the machinery put in a mill is unfit for Argued March 14, 1889. Decided April 15, 1889. ERROR to the Circuit Court of the United States for the District of Colorado, to review a judgment entered upon a verdict in favor of plaintiffs in a suit on promissory notes and an account. Affirmed. Statement by Mr. Justice Lamar. It is said that the Act, professedly for the [611] [612] 313] And thereupon the witness proceeded: upon motion of the defendant, these several The witness then proceeded to read the paper "Q. You may reckon the interest [on said account] from January 1, 1883, up to this time, at six per cent. "A. $233.59." To which question and answer the defendobjected, on the ground that it was immaterial, but the objection was overruled by the court; to which ruling defendant then and there excepted. The defendant introduced as a witness one George K. Sabin, who testified that his occupation for the past twenty years had been mining, and that he was in the employ of the defendant as superintendent at the time of the [614] erection of the mill in controversy, and so continued until the mill was shut down. He further testified, inter alia, as follows: "I have been engaged in mining twenty years, and am acquainted with stamp mills, quartz mills, and mining machinery. The defendant in its answers, original and On the trial the plaintiff introduced as a wit- "Q. Has the firm [meaning the plaintiffs] now any account, not including these notes, against the defendant? "A. Yes, sir. "Q. [Paper shown witness.] Look at that account and see whether this is a copy of the "Q. What was the fair rental value of this mill and its attachments? And in giving your answer you can give it at so much per month, year, or such other division of time as may be most convenient and intelligible." To this question counsel for plaintiffs ob- "Q. Have you been engaged about mills "Q. Do you know their cost? "A. I think I do know something of their cost; have been engaged in their construction. The cost of this mill was about $75,000, inclusive of the machinery and everything connected with it. "Q. What was the fair rental value per month of this mill and its attachments?" To this question counsel for plaintiffs objected on the ground that the witness had not shown himself competent, and the objection was sustained by the court; to which ruling the defendant then and there excepted. The said witness further testified that the defendant company operated a mine near this mill from which the ore was procured to run through said mill. "Q. Was there sufficient quantity of ore in this mine, accessible, to employ the mill and keep it running to its full capacity? "A. Yes, sir. "Q. How long have you been mining and [615] been acquainted with ores? "A. I have been mining since 1860. [616] "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. 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): "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 imme-saving of wages by diminution of the working force when the mill was idle, and the extent to "Q. Do you know of any silver mills of the same kind in that neighborhood? "A. No, sir; there are none in that diate neighborhood. 'Q. At what distance away do you know of any? "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 1,200 pounds each, which makes an average of 13 tons a day. In October we run 977 cars, which averaged 1,200 pounds each, averaging 19 tons a day and a fraction, and in November 1,117 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 conveyors which have been described? "A. We run 30 tons a day afterward. 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 other men had you employed [617] 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? 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 engi neer, as they wanted to hold some one respon sible 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 | inadmissible testimony to be sufficient evidence [618] put in the mill. We changed the original spec- of an indebtedness to permit interest on it to be ifications; they were never accepted by the recovered, as testified to. The assumption of company, they refusing to accept them. We fact involved in these assignments, that the had the acceptance of Riotti of the plans." paper was admitted in evidence, is not suffiAt the conclusion of the testimony the de- ciently supported by the statement in the bill fendant requested the court in writing to give of exceptions. to the jury the following instructions on the right of defendant to recoup damages in said 619] 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 defense, 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 unskillfully 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 unskillful 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 plaintiff's breach of their undertaking, if you find there was such a breach, you may also consider the necessary and im mediate 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 instructions, 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 Messrs. Mason W. Tyler and James C. Spencer, on the brief for plaintiff in error. No counsel appeared for defendants in error. Mr. Justice Lamar delivered the opinion of the court: 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 ag gregating $2,531.78. It is contended that evi dence of this character, "an unproved copy of an unproved account," was inadmisible to show the alleged sale and delivery of merchandise; and second, that the court erred in holding such To obtain a reversal of a judgment it is necessary that the fact, upon which such reversal is claimed, should appear from the record, sufficiently to be passed upon. tinct statement that the paper was admitted in This bill of exceptions falls far short of a disevidence; on the contrary, we think the import of the language is that it was not admitted, but that it was handed to witness and read and used by him as a memorandum with which to refresh his recollection of the articles mentioned the court erred in allowing this to be done, and in the account of plaintiffs. We do not think permitting his testimony to go to the jury for what it was worth. The third assignment of error is, that the court erred in refusing to allow the witness Sabin, introduced in behalf of the defendant, rental value per month of this mill and its atto answer the question, "What was the fair tachments?" This ruling of the court was manifestly proper. It appears from the testimony of the witness himself that he knew of no other silver mill in the neighborhood of Columbus; that he knew of none whatever at that time in operation; that he knew of no silver mill that had been rented in Leadville or in the State anywhere; and that this was the first silver mill he had ever been connected with, though he had been engaged in mining for twenty years, and was acquainted with gold mills enough to know what work they can perform and what they can earn. He evidently had no such knowledge of the marketable condition or rental value of such property as would render his opinion of any use to the jury beyond the merest guess or conjecture. His knowledge and experience of mining mills was such as to render him competent to testify as to the cost of construction, the value of machinery, and the expense of putting it up; and upon these points his testimony was admitted, and was to the effect, among other things, that the mill cost $75,000. The fourth, fifth, sixth and seventh assignments of error are based upon the rulings of the court on the objections of the plaintiff to the other questions propounded by the defendant to the witnesses Sabin and Smith. It does not appear clearly from the bill of exceptions for what purpose these questions were propounded. Evidence to show that the capacity of the mill was 30 tons a day had been offered and received to prove the rental value of the mill, and perhaps very properly, as that might be a necessary preliminary fact leading up to the determination of its value for the rental. But after the defendant utterly failed to show, by any admissible evidence, that there was any rental value for a mill of that kind, we think the court did not err in holding that such rental value could be shown by proving the value or the amount of ore delivered and milled. If, however, the object of these questions (as counsel contends in his brief) was to prove the [620] [621] [622] actual loss of use of the machinery during the | entitled to deduct therefrom the rental value of The ninth assignment of error is, that the court admitted the evidence of the declarations of one Riotti, with regard to the placing of the machinery of the mill, to go to the jury. The introduction of this evidence was objected to, upon the ground that Riotti was not an agent of the defendant in respect to the matters covered by these alleged declarations. The objection does not seem to be valid. The judgment of the Circuit Court is affirmed. v. [623] Chalmers, being recalled, testified that "we THE STILLWELL AND BIERCE MAN. [520] We think this direction or declaration of Riotti was made with reference to the very matters which, according to the testimony of Hurlbut and Chalmers, were directly within the scope of his authority and duty. AMOS PHELPS. (See S. C. Reporter's ed. 520-527.) Damages on unfulfilled contract-rule-notice- 1. Where there was an agreement by plaintiff to furnish machinery and to put it in operation in defendant's mill, and one installment of the price was to be paid on the delivery of the machinery and before the completion of the work, defendant need not, in order to entitle him to avoid paying the whole contract price, or in order to recover the machinery and interrupt his business to obtain damages for plaintiff's breach of contract, take out new machinery elsewhere. 2. The rule of damages, where such machinery was improperly constructed, is to deduct from the contract price the cost of altering the construction of the machinery, so as to make it conform to the contract. We do not deem it necessary to consider the The bill of exceptions states only so much of the charge as relates to the question of damages in the cause. The learned Judge having, as we are authorized to assume, fairly left to the jury the facts as to the alleged breaches of the contract, instructed them that, if they found the defendant entitled to deduct from the plaintiffs' claim its damages resulting from the delay in the operations of the mill caused by the defective machinery, it was undoubtedly 4. Whether a witness, called to testify to a matter [No. 209.] 1889. IN ERROR to the Circuit Court of the United States for the Eastern District of Wisconsin, to review a judgment in favor of defendant in an action to recover for machinery put in a mill. Affirmed. Statement by Mr. Justice Gray: This was an action by an Ohio corporation against a citizen of Delavan in the State of Wisconsin, upon a contract in writing, by which the plaintiff agreed "to furnish and put in complete operation for the second party, in [521 |