Mr. Chief Justice Murray concurred.

The third instruction given by the District Court, at the request of the plaintiff, is clearly erroneous. The true rule of damages is the value of the labor performed, and the amount of profit which could fairly have been derived from the labor left unperformed by the act of the defendants. Although afterwards, at the defendants’ request, the Court laid down the correct rule, yet it is impossible to say that the erroneous instruction first given had no influence upon the jury. Both stood together and were of equal force, and we cannot by computation ascertain by which one the jury was controlled.

Judgment reversed, and cause remanded.