Several errors are alleged to have occurred in the court below, but the only one we can here consider is that which relates to the sufficiency of the evidence to sustain the verdict. Those exceptions relating to the instructions given to the jury, were not reduced to writing during the term at which the trial took place, as the statute positively requires, and therefore they must be deemed to have been waived.

But we think that, giving to the testimony all that can possibly be ‘claimed of it by the defendants in eiror, it will not support the verdict, and therefore a new trial will have to be awarded.

By the terms of the written contract, about which there is no dispute, the plaintiff in error and one Gould, who was his partner, agreed to furnish certain machinery, lumber and labor, in the erection of a mill, which the defendants in error had undertaken to build. And it was stipulated that the same was to be completed by the first day of December, 1868.

*159On the part of Wilhite and Columbia, the defendants in error, it was agreed that they would put in the dam and flume complete, ready for the wheel, build the mill house complete and have it ready for the said machinery by October 15, 1868. And this appears to have been necessary in order to have enabled Holmes and Gould to perform their part of the contract within the stipulated time.

The testimony shows that both parties entered upon the performance of their respective portions of the work, but the dam even was not completed until sometime after the first of December, the time fixed upon for the completion of the mill-wright work by Holmes and Gould.

Shortly after the completion of the dam, however, it was washed out, and destroyed, and Wilhite and Columbia never erected the mill house which was to recieve the machinery and work of the plaintiff in error. In this condition of affairs, Wilhite and Columbia seek to recover back the money advanced to Holmes and Gould, something over a thousand dollars, and the question to be decided is, can they do it?

It ought, perhaps, to be stated that it is claimed by the defendants in error, that the delay in the completion of-the dam was occasioned by the failure of Holmes and Gould to furnish a certain iron tube, valued at some two hundred and fifty dollars, to go through the dam, in time to have enabled them to get it ready any sooner than they did.

The weight of testimony seems to be, that it was, in fact, necessary to have this tube when the dam was being built, so as to insert and cement it in its proper place, and it may have been the understanding of the parties that it should have been l’eady the first of October, as is claimed. If the fact be established that the tube was necessary to the proper completion of the dam, so as to fit it for the reception of the mill house, one end of *160which it was to support, then I am of the opinion that it would be a reasonable construction of the contract to hold, that it should have been furnished whenever the dam was in that state of advancement to require it, and in time so as not to delay the work. And if it had not been so furnished, it is very likely that Wilhite and Columbia might have terminated the contract, and recovered back the money they had advanced thereon.

But they did not chose to do this. They received the tube about the last days of November, without any serious objection so far as can be gathered from the record, and weht on and completed the dam, notwithstanding they had suffered a delay of considerably over a month, in consequence of not getting it earlier. Soon after this the dam was destroyed, as before stated, and nothing further was done by either party toward the completion of the work.

I do not think any rescission of the contract has been shown, but, on the contrary, that it is still open and subsisting between the parties to it. This being so, Wilhite and Columbia are not in a situation to recover back the money they had advanced on it.

The judgment must be reversed, and a new trial awarded.

Reversed and remanded eor triad de novo.