Plaintiffs seek to recover for work and labor done, material furnished, &c., by one Shaw, in and about the erection of a bridge across the Des Moines River. The defendants are styled the “Board of control of the Avenue *62 Bridge Company.” In the course of tlie proceedings and trial several exceptions were taken by the defendant to the rulings of the court, some of which we will notice specially and others generally.

The work was performed under a written agreement. Shaw failed to fulfill the entire contract. The court instructed the jury; “that if any work of value was done on the construction of said mason work or Bridge, though not according to the contract, the plaintiffs are entitled to recover the value thereof, less the amount paid.”

Grranting that under the petition as amended, the plaintiffs could recover, as upon the quantum meruit count, this instruction would still be erroneous. It fails to take into the account the damages of defendants by reason of the breach of the contract by said Shaw. Their damages are set up in the answer, and the rule in such cases is too well settled to need more than its statement. Indeed, in another part of the case, it seems to have been recognized, while in the instruction above set out it was entirely omitted. .

The jury may have followed this erroneous partial statement of the rule. It is not like the case where a proper instruction has been refused, but which has been given in substance in the instructions in chief. It is the affirmation of a rule, which is erroneous and calculated to mislead.

Under the circumstances we think there was no error in permitting the plaintiffs to reply to the answer, or at least no such abuse of the discretion lodged with the court, as to justify one interference.

Questions are made as to the necessity of attaching a bill of particulars to the petition and of showing the assignment of the account for the work and labor, by Shaw to the plaintiffs. The objection is also made that all the counts are special and that no proof can be received of a partial performance of the contract. These questions we pass for the present, for the reason that if plaintiffs’ petition is defective in these respects, defendants are, if possible, in a worse condition as to their answer. Strictly they never have answered *63 Tbe only answers found in tbe record, are made by tbe “Avenue Bridge Company,” a party unknown to tbe record and not complained against in tbe petition. And tbis singularly confused, condition of tbe proceedings is followed up by a verdict a'gainst tbe defendants and judgment against them and tbe Bridge Company.

Upon a record so confused, we would not undertake to pass upon tbe question above alluded to, but for tbe error before stated will reverse tbe case, and remand it with leave to both parties to replead.

Judgment Reversed.