Langworthy v. Connelly. may be allowed to take with them to their room upon retiring to consider of their verdict. It was at one time held generally that all sealed instruments which had been admitted as evidence in the case, as well as all records in the case, and all matters of record which had been admitted in evidence in the case, might be carried by the jury to their room, while sworn copies of papers and unsealed instruments admitted in evidence could not be carried to their room by the jury. At a later date, the rule was stated by a high authority in an English court, as follows: "The jury, after going out of court, shall have no evidence with them, but what was shown to the court as evidence, nor that without the direction of the court. The court may permit them to take with them letters patent and deeds under seal, and the exemplification of witnesses in chancery, if dead, but not a writing without seal unless by consent of parties." Buller N. P. 308. The practice of allowing documentary evidence to be carried to their room by the jury was severely condemned by Mr. Justice COWEN in Farmers' Bank v. Whitfield, 24 Wend. 419. He says: "The evidence of the law, as it stands upon authority and practice, seems to be all one way, and that is against loading the jury with papers which they often will not understand, and sometimes. perhaps cannot even read. As a general rule, it seems much safer that the contents should be communicated to them only by counsel in presence of the court." : On the other hand, the Supreme Court of Pennsylvania, in the case of Alexander v. Jameson, 5 Binn. 238, say, by TILGHMAN, C. J. "It has been our custom to deliver to the jury all written papers, except depositions taken under rule of court. These have been withheld, because it has been thought unequal, that while the jury were not permitted to call the witnesses before them who had been examined in court, they should take with them the depositions of other witnesses not examined in court. After the uniform practice which has prevailed in this State, I have witnessed the trial of many causes, particularly of the mercantile kind, in which the jury could not decide without the aid of unsealed papers— causes which required the minute and laborious investigation of a variety of books and papers, in which long calculations were necessary, founded on accounts and entries. To tell the jury that they must form their verdict on the recollections of what had passed at the bar, would be imposing on them a most unreasonable duty. Langworthy v. Connelly. Under such circumstances, they could do no more than make a vague guess at the truth, and their verdict might be an abuse, rather than a satisfactory administration of justice.' While it is believed to be the law, in the absence of statutory directions on the subject, that the instructions given by the court to the jury in writing may be taken by them to their room where they deliberate, yet this doubtless is a matter of discretion with the court. In the case of Hurley v. State, 29 Ark. 17, which was a capital case, the deposition of one Bevans, a witness, taken down in writing, and subscribed by him before the committing magistrate, and returned to the clerk of the court, and which witness was absent from the State at the time of the trial, was read as evidence on the part of the State, and when the jury were about to retire, the court detached the deposition of Bevans from the other depositions, etc.. returned by the committing magistrate, which had not been read in evidence, and they took it with them on retiring, against the objection of the appellant. Also when the jury were about to retire to consider of their verdict, the court refused to permit them to take from the bar the written instructions given them by the court. The verdict of murder in the first degree was upheld. In the case of State v. Tompkins, 71 Mo. 613, the court say: "And there was no error in permitting the jury to take the instructions with them to the jury-room, since this was a matter within the discretion of the court, and it is the constant practice of many of the Circuits of this State for this to be done, and there has been no ruling of this court that we are aware of to the contrary. Nor do we see that any error was committed in permitting the jury to take with them the documentary evidence in the cause. The law constitutes them the triers of the facts; for those facts, so far as testified by witnesses, they will obviously have to depend upon memory. But why should the jurors be deprived, when they retire to make up their verdict, of the very papers and documents upon which their verdict must to a great extent depend? We are un able to discover any substantial reason. The Code of Iowa provides (§ 1783) that: Upon retiring for deliberation the jury may take with them all papers except depositions which have been received as evidence in the case. In Shields v. Guffy, 9 Iowa, 322, it was asigned for error, that the jury took a deposition with them to their room, and had it there while deliberating on their verdict. The court in the opinion by Langworthy v. Connelly. C. J. WRIGHT, say: "But in the second place, suppose he (the plaintiff, who was also the plaintiff in error) did not know it, or knowing it made no objection, and that he was not bound to; then it should appear that he was prejudiced by the proceedings. The judgment was affirmed. This case is approved and followed in State v. Delong, 12 Iowa, 453. In the case of Langworthy v. Myers, 4 Iowa, 18, it was assigned for error that the instructions (of defendants), twenty in number, were not read to the jury, but handed to them by the court, with the remark that they were given as asked, and allowed to be taken by the jury to their room. The court say: "Either party is, without doubt, entitled to have the instructions read to the jury before they retire, and such is no doubt the better practice. But if the defendants, as in the present case, did not insist upon the instructions being read by the court, and suffered them to be handed to the jury, supposing that they would be read by them, it is too late to assign the same for error, or make the failure to read the instructions to the jury ground of motion to set aside the verdict and grant a new trial." In the State of Indiana it had never been the practice to allow the jury to take any thing with them to their room upon retiring to consider of their verdict, not even the written instructions; yet in the case of Wilds v. Bogan, 57 Ind. 453, "one of the jurors took with him from the judge's desk a paper containing one page of the notes of the instructions given by the judge to the jury in the cause; that he took the paper to the jury room with him; that he looked at it but did not read it; that he laid it down, and that the paper remained in the jury room during the deliberations of the jury, but that no juror read or examined it at any time; that it was returned by him with the verdict and interrogatories into court, he being the foreman of the jury; that the paper was taken by the juror to the jury room without the knowledge or consent of the court, or of either of the parties or their attorneys. The court in the opinion say: "We are unable to see any misconduct whatever on the part of the jury, or any one of them, or any thing in the circumstances that affords the slightest grounds for a new trial. " We quote the following from the opinion of the court in the case of Goode v. Linecum, 1 How. (Miss.) 281: "The third exception which we shall notice is taken to the decision of the court overruling the motion for a new trial. This motion was predicated Bridges v. Lanham, upon the fact that the jury took with them to the chamber, whither they retired to consult upon their verdict, a paper containing instructions which were asked by plaintiff's counsel, but which were refused by the court. But it does not appear from the record that this paper was read by the jury, and consequently then it could have no influence upon their verdict." The judgment was affirmed. A consideration of these cases and many others to the same effect, but which it is deemed unnecessary to refer to at length, leads us to the conclusion that in the absence of statutory direction it is, in a great measure, left to the sound discretion of the court as to what papers, books, or other matters of evidence, or instructions, the jury will be permitted to carry with them to their room upon retiring to consider of their verdict. And that when by mistake or inadvertence on the part of a juryman or the court, or even through error of judgment on the part of the court, a paper has been taken to their room by the jury which ought not to have been, then before a verdict will be set aside and a new trial granted for that cause, it must appear, either from an examination of the objectionable paper itself, or from facts properly presented by the bill of exceptions, that such paper must have been, in the nature of the case, or in point of fact was, considered by the jury in arriving at the conclusion reached by their verdict. [Omitting other matters.] Seeing no error in the record, the judgment of the District Court is affirmed. Judgment affirmed. BRIDGES V. Lanham. (14 Neb. 369.) Damages remote and uncertain. On breach of contract for building a flume there can be no recovery for loss of profits of a mill which the other party was thus prevented from erecting.* A CTION for the price of a flume. The plaintiff had judgment below. The opinion states the case. *See Pollock v. Gantt (69 Ala. 373), 44 Am. Rep. 519. VOL. XLV-16 Bridges v. Lanham. to an artificer who lived at a considerable distance, in order to serve as a model for a new shaft to be made for them by him. The defendant having violated his agreement by not delivering these pieces of iron within a reasonable time, a delay necessarily arose in supplying the new shaft. A shaft being indispensable to the working of the mill, and the plaintiff not having any other, the mill remained idle until the delivery of the new one; but although there was evidence that the defendant knew the mill was standing still, he was not aware that this was for the want of the shaft for which the iron delivered to him was to serve as a model. In this case the decision turned upon the want of knowledge on the part of the defendant, or of notice to him that the mill was lying idle solely for the want of the shaft, the necessary model for which he was failing to deliver to the mechanic who was depended upon to furnish it; and the want of evidence from which the court and jury could find that it was within the contemplation of the parties, the defendant as well as the plaintiffs, at the time of the making of the contract, that the mill would necessarily be idle to plaintiff's damage until a shaft should be manufactured and furnished from the model, the carrying and delivery of which was the subject of the contract. The distinction between the above case and the case at bar consists chiefly in this: There the mill had been completed, had been in operation, and was probably a well-known manufacturing establishment of the neighborhood. Capital was actually invested in it. Probably a number of persons were employed in and about the mill; it had established customers, as well those who furnished the raw material as those who purchased and used the manufactured product. Thus it is obvious that a continued suspension of its operations would be substantial and far reaching in its effects. But here, while there was evidence tending to prove that it was the intention of the defendants below to erect a corn mill for temporary use, to be propelled by water supplied by the flume which the plaintiff contracted to erect, and that such intention was known to him, yet it is an undisputed fact that this mill had not been built; that it only existed in the intention and potential ability of the defendants to build it. The case of Griffin v. Colver, 16 N. Y. 489, was where the plaintiff agreed to build a steam engine with boilers, etc., for defendants, and deliver it to them on a day certain. He failed to do so, and a delay of one week occurred, during which time defendants lost the |