after stating the case:
1. We do not understand counsel for the plaintiff to controvert the settled principle that when an offer of compromise is made and rejected, the rights of the parties remain, without prejudice, precisely as they were before the offer; but they insist that the evidence is rendered competent by what was said on the cross examination.
The defendant Farquhar, whose deposition (taken before the trial) was read, testified, without objection, that after he had been unable to effect a settlement with Reavis and Edwards, “ who pleaded their poverty, among other reasons, *374for not making a settlement, I promised to take $200 in full settlement of the whole amount due me, and pay off the discounted note and return it with the others”; and we are unable to see how the testimony objected to could prejudice the defendant.
2. The second exception is to the submission of the fourth issue which relates to alleged damages sustained by Reavis. The issues are made by the pleadings, and, as the complaint alleges and the answer denies, that Reavis has sustained damage, the issue was a proper one Whether his Honor should have instructed the jury that there was no sufficient evidence to sustain the allegation, is a different question, as will be seen, when we come to consider the exception to his charge in relation thereto.
3. The third exception was to the refusal of his Honor to instruct the jury, “ That there was no evidence of any agreement on the part of A. B. Farquhar to the rescission of his contract with the plaintiff.”
Both Edwards and Reavis testified that Edwards, within four or five days after the contract was made, wrote to Farquhar, “asking him not to ship the machinery, and offering to pay damages”; that the machinery was to be sent within seven days from the time they sent the contract, and as the machinery was not shipped, and ho answer received, they understood the request not to ship the machinery to have been agreed to by the defendant.
It appears from the testimony of both Edwards and Reavis that they wrote to Farquhar, “asking him not to ship the machinery and offering to pay damages.” It further appears that the machiner}'- was not shipped, and much of the evidence sent up with the record, and which we deem it unnecessary to set out, relates to a controversy between the parties as to the amount of damages sustained by the defendant. Orenshaw testified that “the letter from plaintiffs to Farquhar, asking him not to ship the machinery and,let *375them pay damages was sent to him, with instructions to see the plaintiffs and make some settlement, and that he tried to settle with them and never succeeded.” The plaintiffs, in their letter, promised to pay damages, and the subsequent controversy seems to have related only to that question.
The defendant Farquhar did not ship the machinery, and whatever may have been the amount of damages sustained by the defendant, we think there was some evidence to go to the jury upon the question of the rescission of the original contract. The plaintiffs made an offer to pay damages, asking defendant not to ship the machinery under the contract' and if the defendant agreed to this, and did not ship the machinery in consequence of it, the failure, thereafter, to agree upon the amount of damages would not affect the question of rescission.
4. The fourth exception related to the latitude permitted plaintiff’s counsel in the course of his closing argument. It does not appear that his Honor was requested to interpose and stop counsel, and he instructed the jury, “in substance, to consider the evidence without reference to any prejudice,” which removed the objection.
The fifth, sixth and seventh exceptions are embraced in the following charge to the jury, and indicate—
5. That they might consider the testimony and determine, from all the circumstances, whether the defendant Farquhar agreed to rescind his contract with the plaintiffs; that he had a right to ship the goods and hold plaintiff to their contract, but if the jury should find that the negotiations between Farquhar’s agent and the plaintiffs for a settlement, subsequent to the letter from plaintiffs to Farquhar, had sole reference to the question of damages, that fact might be considered, in connection with his not shipping the machinery, as tending to show his agreement to the rescission.
*3766. That, after notice to the defendant to produce the notes, or bonds, given by plaintiffs to A. B. Farquhar, it was the duty of the defendant to produce them, and .the jury may consider their failure to produce them, after such notice, as evidence tending to show that, the one due twelve months after date had not been assigned to E. P. Stair before maturity.
7. That upon the question of damages, if the jury shall decide that the plaintiff Reavis is entitled to damages, the measure of his damages will be the loss resulting in his inability to sell his land because of the defendant’s deed of 'trust (seventh exception).
As to the fifth exception, we think the charge of his Honor was warranted by the evidence, to which we have already referred, and there was no error.
As to the sixth exception, the notes were in the possession or under the control of the defendant, and if, after notice, they were not produced, the jury might consider that as a circumstance, in passing upon any alleged fact which would be made to appear, or not appear, by the production of the notes themselves; and of this the defendant would have no right to complain. It will be observed that the defendant Stair does not allege that the note was transferred before maturity and without notice, but there was no objection to the issue.
As to the seventh exception, there was no evidence to warrant the charge of his PTonor as given. The only evidence in any way bearing upon the question is that of the plaintiff Reavis, which is as follows: “ I think it was about a year ago that my land was advertised by Orenshaw; I have been damaged by the property being advertised, and by its .being tied up with this deed of trust; I had a chance to sell the land at a good profit.”
On his cross-examination, he said that “the notes had never been returned to him, and the deed of trust had never *377been cancelled; that he had never called upon either Far-quhar or Orensliaw for their surrender and cancellation; that at the time he had an opportunity to sell his land there were judgments against him, two or more of them docketed in the Superior Court Clerk’s office, and a lien on his land of small amounts, and his land was worth $800.”
This was all the evidence in any way relating to the question of damages to the plaintiff, and it presented the jury with no measure, great or small, by which to determine the amount of damages, if any, sustained by the plaintiff. His original complaint made no demand of judgment for damages, but only asked that the defendant Orenshaw be restrained from selling or disposing of the property until the question as to the amount due the defendant, if any, could be passed upon and ascertained.
There was error in the charge excepted to, and the defendants are entitled to a new trial.
Error.