#### JACOB BYERLY vs. DAVID KEPLEY AND al.

When A agreed to build for B a good saw-mill, B undertaking to cut the mill race, and the mill was worthless, in consequence of a defect in the race below; and, when it appeared that A had undertaken to ascertain the level, and designate the position of the race, and had done it so unskillfully as to produce the defect in question, Held, that A had a reasonable time to have the error corrected, and he had a right to have such correction made, provided he could show that, as proposed by him, it would remedy the defect.

'To recover on the common counts for materials furnished, and work and .labor done, it must be showrf, that the article was received or used by the defendant, or was in some way beneficial to him.

Action of assumpsit, tried before bis Honor Judge Saunders, at Fall Term, 1853, of Davidson Superior Court.

The plaintiff declared on a special contract, and upon the ¡count for work and labor done, &c. The case was, the plaintiff agreed “to build for the defendant a good saw-mill, to find the irons, and to do all the mechanical work, and the defendant to cut the mill-race.” The plaintiff took the level of the ground and marked out the position for the mill-race, which was cut by the defendant according to his designation. The race averaged about two feet wide. The frame of the mill was placed partly on a rock and partly on the ground, ■and propped up with small poles. The plaintiff was'not a millwright by trade, but expressed confidence in his ability to build as good a mill as any one, and, to get an opportunity of exhibiting his skill, agreed to undertake this mill below the usual rates. When the work was finished, and *36tbe mill started, it made only a few strobes, when it stopped, in consequence of tbe water flowing back upon tbe wheel. Plaintiff said that tbe wheel was too low, and the race too narrow. Shortly after this, the plaintiff applied to the defendant to have the race cut wider, to which-he made no reply. About eighteen months afterwards, he again applied to the defendant to have the race cut wider, to which he replied, that “the plaintiff had marked out the race, and directed how it was to be cut, and if not properly done, the fault was his, and as he had been told the work was worth nothing, he should do nothing more with it.” In regard to the quality of the work, the evidence was contradictory. Some time after the work was done, the mill frame on one side sunk several feet. Whether there was any fall in the race, was, also, the subject of contradictory evidence.

Sis Sonor charged the jury, that, according to the agreement, the plaintiff was bound to do the necessary work for a good saw-mill, and the defendant to cut a proper mill-race. Rut, as the plaintiff had undertaken to mark out the race^ and to direct its cutting, if not properly done, the fault was his. Yet, as no time had been named for finishing the work, the law allowed a reasonable time, and, if the plaintiff had committed any error in the first place, he had a right to correct it; and, if the jury believed he had applied to the defendant, in a reasonable time, to widen the race, and he failed to do it, the fault must be on the defendant: That eighteen months would be too late; but the first notice,if made, was in reasonable time. As to the foundation, whether a single or double pillar, as plaintiff had undertaken to secure the frame, he was bound to have done it in a proper way. As to the quality of the work, that was a question for the jury. If they should find the work well done, and such as would have ensured a good saw-mill, the plaintiff would be entitled to their verdict. But, if they should believe that not to have been .the case, -or if they *37should believe the failure to have arisen from the want of proper skill, on the part of the plaintiff, in not having done what he had undertaken to do, in a proper way, as the law required competent skill on the part of all undertaking to do what they contracted to do,, then their verdict should be for the defendant.

Ycrdict for the defendant. Motion for a venire de novo. Rule discharged, and appeal to this Court.

Lanier, for plaintiff.

Jt 3. Bryan, for defendants..

Battle, J.

The instructions given by his Honor to the jury, that the plaiptiff could not recover upon the special contract, unless the saw-mill was built in a good and workmanlike manner, was undoubtedly correct, and we do not understand the counsel to object to it. But the counsel insists, that the plaintiff" had, by his contract, nothing to do with the cutting the race to carry off the water below the mill, and that his Honor erred, in- stating to the jury, that if it was cut improperly under his direction, he was in fault. It is true, that, by the terms of agreement, it was incumbent upon the defendant to cut such a race as would give proper operation and effect to the building and machinery, which the plaintiff had engaged to put up. It may be, that it was no part of the plaintiff’s duty to give any directions in relation to the length, breadth or depth of the race; but, having assumed to do so, and the defendant, by working according to his instructions, having assented to his assumption, he was in fault, if the instructions given were wrong.

Having undertaken, though voluntarily and without compensation, the duty of an engineer for the defendant, he was bound, at least^for such skill as was necessary for the accomplishment of the work. Coggs v. Barnard, 2d Ld. Raym. 909. Brown v. Ray, 10 Ired. 72. See, also, Sm. *38Lead. Cases, 169. But be bad tbe right, if be found that tbe race was not cut sufficiently wide, to correct bis mistake, and call upon the defendant to make tbe requisite alterations, and so his Honor held. Upon tbe defendant’s refusing to do this, the plaintiff’s right to recover would have been unquestionable, had be proved that what bo required to be done, would have removed the only obstacle to tbe successful operation of tbe mill. But hero his case failed; for, ! bough testimony was offered on both sides, as to tbe. relative height of tbe water at tbe wheel, and at tbe point where it entered tbe creek from the race, it does not appear from tbe bill of exceptions, that any was offered to show', that, making tbe race wider, would Have removed tbe difficulty ; tbe wheel, as tbe plaintiff admitted, being bung too low. He could not recover upon the special contract, until he showed that be had fulfilled bis part of it, and that there was a breach of it, by tbe defendant.

Failing on bis count, on tbe special contract, the plaintiff’s counsel insists, that he is entitled to recover on tbe common counts, for tbe materials furnished, and the work and labor done. But, unfortunately for him, tbe testimony is defective here also. To enable him to recover on these counts, be ought to have shown, that the house and machinery were received or used by the defendant, or were iu some way bene.ficial to him. Dover v. Plimmons, 10 Ired. 23, citing Ellis v. Hamlin, 3 Taunt 52, 1 Leigh N.P. 77.

The testimony in this case, so far from showing that the saw-mill had been received or used by the defendant, or was of any value to him, proved rather the contrary, that lio said lie was told the work was worth nothing, and added that he should do nothing more with it. Wo think, therefore, that the plaintiff was not entitled to recover upon either of the counts of his declaration, and the judgment must be affirmed.

Judgment affirmed.