We are of opinion that the taking of the oath of allegiance in January, 1858, by the father of the petitioner, was an act of expatriation and denationalization, and made him a citizen of a foreign country. By such act, he renounced his allegiance to the United States. We have no doubt that he had a right when he took this oath to expatriate himself, to renounce his allegiance to the country of his birth, and to become a citizen of another state or kingdom. On this point we refer to the case In re Look Tin Sing, 4 West C. Rep., 71, where the right of expatriation is discussed, and in the views there expressed concerning it, we concur.

That the act of taking the oath of allegiance made him a citizen of another county, is sustained by the admitted facts that he afterwards voted at public elections and held public offices in Canada. The petitioner having been born after his father became a citizen of a foreign country is not within the provisions of the act of congress of February, 1855, or of section 1,993, revised statutes of the United States. These provisions only apply to the children born out of the limits and jurisdiction of the United States before or after the passage of the enactment referred to, whose fathers were at the time of their birth citizens of the United States.

It follows from the foregoing that the petitioner has never been a citizen of the United States, and therefore is not entitled to be registered as a voter.

The clause in section 2,172, title XXX of the revised statutes"and the children of persons who now are or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof," should not in our opinion be construed as changing the rule prescribed in section 1,993. It should be read and construed with the section last mentioned, that the father of such child must have been at the time of its birth, a citizen of the United States. We cannot suppose that with the provisions of section 1,993 before it, congress intended in section 2,172 to alter the rule prescribed in the former section, and to make the child of one who had renounced his citizenship in the United States and assumed allegiance to another power, born after such renunciation and assumption, a citizen of the United States-in other words to make a child born abroad of an alien, a citizen of this country.

The writ must be denied and it is so ordered.
MYRICK, J., and SHARPSTEIN, J., concurred.

No. 8,900.

WINANS v. SIERRA LUMBER COMPANY.

In Bank. Filed October 28, 1884.

CONFLICT OF EVIDENCE-VERDICT-NEW TRIAL.-A verdict rendered upon substantially conflicting evidence cannot be disturbed and a new trial granted, except for errors of law occurring at the trial.

AN INSTRUCTION, ALTHOUGH ERRONEOUS, IF NOT PREJUDICIAL TO THE DEFEATED PARTY, is not ground for reversal.

DAMAGES FOR BREACH OF CONTRACT-NEGLIGENCE-PREVENTION OF Loss.-One who sues to recover damages for injuries in an action arising out of contract or tort, cannot recover if the injuries were consequent upon his own negligence which directly contributed to them. Every one engaged in the performance of a contract is bound to do everything in his power to prevent loss to himself from a breach of the contract by the other party. If he cannot prevent it altogether, he must make reasonable exertions to render it as light as possible; and if, by his own negligence or willfulness, he allows the damages to be unnecessarily enhanced, the increased loss must fall upon him.

PARTIAL BREACH OF CONTRACT-ESTOPPEL-PART PERFORMANCE OF CONTRACT. —A party to a contract is not estopped from asserting his claim for a partial breach of the contract by the other party, from the fact that at the time when a settlement was had between them for work done under the contract, no mention was made of such claim. If the contract was susceptible of more or less performance, and there was a partial breach thereof by one of the parties, the other has the right to continue to carry out the contract, reserving to himself the right to bring action for such damages as he may have sustained by the partial breach.

BREACH OF CONTRACT TO MANUFACTURE LUMBER-MEASURE OF DAMAGES.-The plaintiff and defendant entered into a contract whereby the plaintiff agreed to manufacture lumber, and the defendant agreed to purchase a'l that the plaintiff might manufacture, at a stipulated price, and to furnish him certain machinery for such purpose. The machinery furnished was inadequate, and by reason thereof the plaintiff was unable to manufacture as much lumber as he otherwise would have done. In an action to recover for the breach of such contract, held, that the measure of damages was the contract price for the lumber which the plaintiff was so prevented from manufacturing, less the expense he would have incurred in manufac turing said lumber, over and above the amount necessarily expended under the circumstances, in manufacturing the amount actually manufactured by him.

APPEAL from a judgment of the superior court for Tehama county, entered in favor of the plaintiff, and from an order denying the defendant a new trial. The opinion states the facts.

Chipman & Garter and Mastick, Belcher & Mastick, for the appellant. J. Chadbourne and J. F. Ellison, for the respondent.

MCKEE, J. Appeal from a judgment and order denying a motion for a new trial.

On the fifteenth of March, 1881, the Sierra Lumber Company, being the owner of some tracts of timber lands, two saw mills known as the Champion and Yellow Jacket Mills, situate in Tehama county, together with a lumber yard and planing mill, a water flume, extending from the Champion Mill to its lumber yard, and personal property used in connection therewith, made and entered into a contract with George Winans, the plaintiff to the action in hand, to deliver to him possession of said property, including a specified number of teams and trucks for hauling logs, and to furnish him sufficient strap iron and rails for a tramway and a suitable engine and cars for the tramway. Winans agreed to construct the tramway from the Champion to the Yellow Jacket Mill at his own expense, and to operate the mills during the lumbering season of 1881, for manufacturing from the timber lands of the company, lumber,

which when manufactured was to be delivered at the lumber yard, to the company, who agreed to pay for the same, when delivered, nine dollars per thousand feet, and eight dollars per thousand feet for any undelivered lumber remaining at the mills, on the first day of December, 1881, when the mill property was to be surrendered to the company.

The company furnished the two mills with their equipments, the flume, the outfit for logging and the iron for the tramway to be constructed by the plaintiff; and the plaintiff entered into possession under the contract, constructed a tramway and operated the mills through the lumbering season of 1881, during which he manufactured five and one-half millions feet of lumber, all of which the company received from him and settled for at the contract price.

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But the plaintiff charges that while he fully performed the contract on his part, the defendant on its part failed to fully perform it, in this, that it neglected and refused to furnish a suitable engine for the tramway which he constructed. In fact, the company did furnish an engine; but the plaintiff alleges that it was wholly unsuitable for the tramway by reason of the peculiar make of its wheels," and would not work properly on the tramway, and although repeatedly notified and informed of the fact, defendant refused to furnish a suitable engine, in consequence of which plaintiff was able to manufacture only five and a half millions feet of lumber, when, if he had been furnished with a suitable engine for the tramway, according to the contract," he would have cut nine millions feet at no greater costs or expense than he was put to in the manufacture of said five and a half million feet."

In answer to this the defendant averred, that the contract was for the manufacture of seven million feet of lumber for which the company promised to pay nine dollars per M, and admitted, that the plaintiff entered upon the performance of that contract, and commenced to construct the tramway called for by the contract, bat averred: "That the plaintiff failed to build and complete about three and a half miles of the tramway, and that the six and a half miles constructed by him were constructed with such short and irregular curves and uneven and excessive grades, and in so unworkmanlike, insufficient and defective a manner that it could not be successfully worked by him, and was of little value when turned over to defendant at the end of the season."

The questions at issue, as raised by the pleadings, therefore, involved inquiries as to the contract under which the parties had acted-the plaintiff in constructing the tramway, and the company in furnishing the engine, and as to the character and sufficiency of the tramway and the suitability and sufficiency of the engine. It was conceded that the engine and tramway did not work well togother; but the great question was, whether the faults, which caused that result and occasioned the loss of which the plaintiff complained, were in the engine or in the construction of the tramway.

As to the contract, there was given evidence tending to prove that it had been made by the plaintiff and the general superintendent of the company. It was admitted that both parties acted under the contract which was made, and each claimed to have fully performed it. The company gave evidence tending to show that the contract was for the manufacture of seven million feet of lumber; the plaintiff, that the contract was "to manufacture all the lumber he could." Much evidence was also given in relation to the construction of the tramway and the suitability and sufficiency of the engine which the company furnished, and which the plaintiff used and operated in the performance of the contract; there was also evidence given tending to prove that the plaintiff had men, machinery and force sufficient to operate the mills at their full capacity for the lumbering season of his contract, and that he could have manufactured during the season a greater quantity of lumber than he actually did. The verdict was for the plaintiff; and as it was rendered upon substantially conflicting evidence it cannot be disturbed and a new trial granted, except for errors of law occurring at the trial; and the main matters urged on this appeal are errors of law occurring at the trial. The first relates to instructions given to the jury upon the question of the authority of an agent of a corporation to make a contract for the corporation. At the defendant's request the court had given the jury some instructions upon the subject of the ostensible authority of such an agent, and then quoted to them the language of sections 2,315-16-17 of the civil code, and, in connection therewith, substantially told them that the plaintiff would not be entitled to recover, unless they found as a fact that the superintendent of the company had been authorized to contract for the company. The defendant excepted to the instructions; but the instructions as given were favorable and not prejudicial to the defendant.

As to the performance of the contract by the parties the following was given: "One of the parties to a contract cannot complain of a failure on the part of the other to perform, if his own laches or refusal to perform has contributed to defeat the object of the contract.

"Proof of perfection, however, in tramway, cars or engine, is not required; only such as from the evidence you find that the parties contemplated such a tramway, such cars, and such an engine, and only such, to fulfill the contract, as a prudent man, owning the timber and mills, would have made or furnished for himself, having in view present and future pecuniary profit." Defendant excepted to the latter portion of the instruction. We think it was not objectionable. In substance it told the jury, that to entitle either of the parties to their verdict it was not necessary for the plaintiff to prove that he had constructed a perfect tramway; nor for the defendant to prove that he had furnished a perfect engine. The contract only required such a tramway, or engine, as, in the situation of the parties and in the light of surrounding circumstances, would be sufficient and suitable for the business in which they were about to

engage. To the first part of the instruction the defendant did not object. In fact, it was given at the request of the defendant; and, in connection with it, the court elaborately instructed the jury, that if they believed from the evidence that the loss of which the plaintiff complained resulted from his own failure to perform his part of the contract, or from his negligence in constructing the tramway, or in operating the engine which the company furnished, or from the want of ordinary care and caution, either in operating the engine, or in constructing the tramway, or in repairing the particular places where the injury was threatened or was likely to arise, he would not be entitled to their verdict, even if they found as a fact that the engine furnished by the defendant, was defective and unsuitable for the tramway.

The elaborate instructions which were given placed the right of the plaintiff to recover upon the ground that he himself must have been wholly free from fault, not only in performing his part of the contract, but in operating the engine which was furnished to him. And there is no doubt that a person who sues to recover damages for injuries in an action arising out of contract or tort, cannot recover if the injuries were consequent upon his own negligence which directly contributed to them. The law imposes upon every one engaged in the performance of a contract the duty of doing everything in his power to prevent loss to himself from a breach of the contract by the other party. If he cannot prevent it altogether, he must make reasonable exertions to render it as light as possible; and if, by his own negligence or willfulness, he allows the damages to be unnecessarily enhanced, the increased loss must fall upon him: Hamilton v. McPherson, 28 New York, 72. The question, whether the loss of which the plaintiff complained was due to the laches of the plaintiff or to the non-performance of the contract by the defendant was, therefore, properly put to the jury; and if the evidence satisfied the jury that the engine furnished by the defendant was so defective that the plaintiff was prevented from manufacturing the quantity of lumber which he could have manufactured with a suitable engine, and thereby sustained a loss, he was entitled to recover, unless he had by his conduct estopped himself from maintaining

the action.

There was evidence given of a settlement between the parties, after the close of the lumbering season of the year 1881, of the affairs and business of the parties in connection with the lumber manufactured and delivered under the contract. At that settlement the plaintiff made no mention of any claim, or cause of action, against the defendant for a partial breach of the contract. But if the plaintiff had such a cause of action he was not bound to make it known at a settlement about the lumber actually manufactured; and the mere non-mention of it would not estop him from afterwards maintaining an action upon it. The instructions to the jury that the plaintiff would not be estopped, unless they believed from the evidence that he, by his acts, declarations, or omissions had