intentionally and deliberately led the defendant to believe that the engine furnished was according to the contract, and that the defendant relied upon such acts, declarations or omissions to its in jury, were, we think, correct. And we think the court correctly instructed the jury, that when the plaintiff discovered "that the engine was unsuitable for the tramway, he was not bound to rescind the contract, and make no further effort to carry out its purposes. He was at liberty to go on and manufacture all the lumber he could under the circumstances, and endeavor in good faith to carry out the contract; and by so doing he would not release or forfeit any claim for damages he might ultimately sustain by reason of any breach of the contract by the defendant." The contract was one susceptible of more or less performance; and if there was a partial breach of it by the defendant, the plaintiff had 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.

If there was such a breach, resulting in loss to the plaintiff, the question then remained what was the measure of damages? Úpon that question the following instructions were given:

"For the breach of an obligation arising from contract, the measure of damage is the amount which will compensate the party aggrieved for all detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom." "Where an action is brought to recover general damages for a breach of contract, the jury may take into their consideration any consequential damages which the plaintiff has sustained by reason of such breach, provided that such damages may fairly and reasonably be considered either as arising naturally—that is, according to the usual course of things-from the breach of the contract itself, or may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of a breach of it."

"If the jury believe from the evidence, that the engine furnished by defendant to plaintiff was not of the make and description it had contracted to furnish him; and that the plaintiff duly notified the defendant of the defects in said engine, and of its unfitness for the purposes of said contract, and'afterwards, without any default on his part, made every reasonable effort, in good faith, to accomplish the purposes of said contract, and to prevent loss or injury, but, ultimately, by reason of defendant's failure to furnish an engine of the kind and make agreed to be furnished, suffered damage, and was prevented from manufacturing lumber, which he otherwise would have manufactured, then the plaintiff is entitled to recover, as damages, the contract price of the lumber which he was so prevented from manufacturing, less the expense he would have incurred in manufacturing said lumber, over and above the amount necessarily expended under the circumstances, in manufacturing the amount actually manufactured by him."

We think these instructions were right.

The contract being one susceptible of more or less performance, the damages sustained by an incomplete performance or partial breach were apportionable according to the extent of failure. That would cover the actual loss sustained, and the actual loss would be the profits which the plaintiff could have made upon a complete performance of the contract: Utter v. Chapman, 43 Cal., 283; Upstone v. Weir, 54 id., 124: Hale v. Trout, 35 id., 220. And these profits would be the product of the lumber which he was prevented from manufacturing, by the partial breach of the contract, and the contract price, less the expenses which would have been incurred in its manufacture.

There was evidence tending to prove that the plaintiff had made preparation by men and means to manufacture lumber to the extent of the capacity of the mills; and that with this force he could have manufactured with a suitable engine more lumber that he did not manufacture. But defendant denied "that the plaintiff could have cut nine million feet of lumber at no greater cost or expense than he was put to in the manufacture of the lumber he, in fact, manufactured," and contended that the manufacture of any additional lumber would have involved the expense of cutting additional logs, and making them ready to be hauled over the tramway and laying them at the mills for the purpose of manufacture, even if he had a force of men and logging teams employed for that purpose, and that such additional expenses should be deducted from the profits of any additional lumber which could have been manufactured. That contention was founded upon some evidence in the case, and it was fairly covered by the instruction, that the plaintiff, if he was entitled to recover at all, was entitled to recover as damages the contract price for the lumber which he was prevented from manufacturing, less the expense he would have incurred in its manufacture, "over and above," i. e., separate from the expense he had incurred in and about the lumber which he had actually manufactured.

It was also contended that the value of the use of the tramway and engine by the plaintiff for his individual benefit, at times which did not interfere with the performance of the contract, should be deducted from any damages sustained by the plaintiff. But that matter entered into the settlement between the parties as to the lumber actually manufactured; and the defendant admitted that the plaintiff had paid for the same.

Taken in connection with the evidence and pleadings in the case, we think the instructions, as a whole, correctly stated the law of the case, and presented the case fairly to the jury; and as we find no prejudicial errors in the numerous assignments of errors, the judgment and order are affirmed.

MYRICK, J., SHARPSTEIN, J., and THORNTON, J., concurred.

No. 8,827.

RECLAMATION DISTRICT No. 108 v. HAGAR.

In Bank. Filed October 28, 1884.

RECLAMATION STATUTES NOT IN CONFLICT WITH UNITED STATES CONSTITUTION.-The statutes of this state, regulating the formation of reclamation districts, the levying of assessments, and the mode of collecting the same, are not in conflict with the fourteenth amendment of the United States constitution; nor are the same in violation of section 10, article I of said constitution, forbidding the passage of any law impairing the obligation of contracts, on the ground that the state, in accepting the grant under the " Arkansas Act," assumed the burden of reclaiming the land, and cannot impose this burden upon its grantees.

APPORTIONMENT OF ASSESSMENT EQUALITY OF BURDEN OR BENEFIT. -Whether or not the mode of assessment is in accordance with proper apportionment, or equality of burden or benefit, is for the consideration of the 1 gislature, in the absence of a palpable violation of private rights. In the present case, the court cannot say that the burdens to be borne are not equal in proportion to the benfits.

SUCH ASSESSMENT MAY BE MADE PAYABLE IN GOLD COIN.

BY-LAW OF ASSESSMENT DISTRICT SUBSEQUENT ASSESSMENT.-A by-law of an assessment district, prohibiting an indebtedness to accrue, in excess of the amount of assessment levied, cannot invalidate an assessment levied in accordance with section 34, of the act of 1868.

POWER OF TRUSTEES OF RECLAMATION DISTRICTS TO EMPLOY COUNSEL.-The trustees of reclamation districts are authorized to employ special counsel, other than the district attorneys of their respective counties, in the prosecution of actions for the enforcement of assessments, and to provide for the payment of their services out of subsequent assessments. CONSTITUTIONALITY OF ASSESSMENT.-An assessment for the reclamation of swamp lands, although not made by a municipal corporation, is not unconstitutional.

RECLAMATION DISTRICT-LANDS WITHIN OTHER COUNTY-POWER OF SUPERVISORS OVER. — The legislature may confer on the board of supervisors of one county the power to include within a reclamation district any lands within another county.

ACTION TO ENFORCE ASSESSMENT-REAL PARTY IN INTEREST-RECLAMATION DISTRICT AS PLAINTIFF. In an action to enforce an assessment for the reclamation of swamp lands, brought under the act of March 28, 1868, the reclamation district is the real party in interest, and a judgment therein, rendered in favor of the plaintiff, if otherwise valid, will not be reversed, because such action was not brought in the name of the people.

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

Belcher & Belcher, for the appellant.

A. C. Adams and Jackson Hatch, for the respondent.

SHARPSTEIN, J. This action was brought to recover of the defendant an assessment levied upon his land for reclamation.

1. The statutes of this state relating to the formation of reclamation districts, and the levying of assessments, require that upon the presentation of a petition setting forth a description of the lands of which it is desired to have the district formed, with the names of the owners (if known), notice of the hearing shall be given by publication. After the formation of the district, no other or further notice to owners is required to be given; but proceedings are to be had for the election of trustees, making of by-laws, appointment of commissioners, the estimate of works and their cost, and the assessment of such cost upon the lands of the district, and no time, place or manner is named for any opposition to be made. If an assessment remains unpaid, provision was made for the bringing of an action against the delinquent owner. The appellant claims that the statutes are in conflict with the fourteenth amendment of the constitution of the United States. Upon this point the supreme court of the United States and this court have decided adversely to

the appellant: Davidson v. New Orleans, 96 U. S., 97; Hagar v. Rec. Dist. No. 108, 111 U. S., 701; Rec. Dist. No. 3 v. Goldman, 4 West C. R., 97.

2. Whether or not the mode of assessment in accordance with proper apportionment, or equality of burden or benefit, was for the consideration of the legislative department, in the absence of a palpable violation of private rights: Hagar v. Rec. Dist. No. 108, 111 U. S., 701. In the case before us, we cannot say that the burdens to be borne were not equal in proportion to benefits.

3. It is claimed that the law authorizing the assessment is in violation of section 10, article I, of the constitution of the United States, forbidding the passage of any law impairing the obligation of contracts, on the ground that the state, in accepting the grant under the Arkansas Act," assumed the burden of reclaiming the land, and cannot impose this burden upon its grantees. The case of Hagar v. Rec. Dist. No. 108, supra, holds the contrary.

4. There is nothing in the point that the assessment is sought to be enforced in gold coin: Hagar v. Rec. Dist. No. 108, supra.

5. A by-law adopted declared that "the trustees shall allow no indebtedness to accrue in excess of the amount of assessment levied." An indebtedness in excess of the first assessment was levied to pay such excess, with other expenditures. It is urged that the subsequent assessment is therefore void. Section 34 of the act of 1868 authorized additional levies to be made, upon revised estimates, if the previous taxes should be insufficient. The by-laws authorized to be adopted were such as might be deemed necessary to effect the work of reclamation and keep the same in repair. Bylaws could not have the effect of forbidding the doing of that which the law expressly authorized to be done.

6. After the levy of two assessments, which were found to be insufficient, a third assessment of one hundred and eighteen thousand two hundred and eighty-eight dollars was levied. On the trial of this case, the defendant offered to prove that of the indebtedness of one hundred and eighteen thousand two hundred and eighty-eight dollars (the amount of the third assessment) more than ten thousand dollars, and of the indebtedness of one hundred and ninetytwo thousand and forty-six dollars (the amount of the second assessment) more than fifteen thousand dollars had been paid by the trustees for the services of attorneys, other than the district attorneys of the counties of Yolo and Colusa, in the prosecution of actions in the courts of this state for the enforcement of the first and second assessments. This evidence was objected to, on the ground, among others, that the nature of the indebtedness was necessarily determined by the trustees in their statement to the board of supervisors to have been proper, and such as the law contemplated, and by the board of supervisors in making the order for the assessment, and that neither the determination of the trustees nor that of the board of supervisors can be contradicted or impeached in this suit. The objection was sustained.

A like ruling was had upon a question asked as to how much of the one hundred and eighteen thousand two hundred and eightyeight dollars had been paid for the expenses of procuring legislation in regard to the affairs of the district. That the ruling of the trial court was right was decided by this court November 29, 1879, in Rec. Dist. No. 108 v. Howell, No. 6,348, and Rec. Dist. v. Howell et al., No. 6,346. See also, Rec. Dist. v. Hagar, 6 Pac., C. L. J., 499, sustaining the same view.

7. The point that the assessment sought to be enforced in this action was not made by a municipal corporation, and was therefore unconstitutional and void, is admitted by appellant to be adverse to the decision of this court in Hagar v. supervisors of Yolo county, 47 Cal., 222; but we are asked to reconsider the question. We are not disposed to say that case is not correct.

8. The appellant claims that the assessment was void, because, under the law authorizing it, lands within the district belonging to the state, as a private proprietor, were required to be and were exempt from the assessment. We are not referred to anything in the transcript, showing that any lands in the district belonged to the state; nor that any lands were omitted from the assessment.

The complaint alleged that no lands in the district were unsold; and this allegation was found by the court to be true. The petition presented to the board of supervisors was accompanied by a schedule, giving a list of the lands of the proposed district, with the names of owners so far as known; and, on the hearing of that petition, the defendant Hagar, being present, admitted the truth of all the facts set forth therein.

9. The point that the legislature could not confer on the board of supervisors of one county the power to include within a district any lands within another county, is not well taken: Hagar v. Rec. Dist. No. 108, supra.

10. The act of March 29, 1872, stats. 1871-72, p. 696, authorized the recovery of interest.

11. The assessment in question was valid according to the provisions of the act of March 28, 1868, as amended March 28, 1872. All of the requirements of that act with respect to assessments were met and performed, according to the averments of the complaint, which averments were by the court below found to be true. Upon the merits, therefore, the judgment appealed from is right. Must we reverse it only because it is brought in the name of the reclamation district, which, under every statute that has been passed with respect to the reclamation of lands, is the real party in interest? It is true that it has been decided here that actions brought under and in pursuance of the provisions of the act of 1868, were properly brought in the name of the people: People v. Hagar, 52 Cal.; People v. Haggin, 57' Cal.; and, further, that actions brought under and in pursuance of the provisions of the political code must be commenced in the name of the reclamation district: People v. Haggin, 57 Cal. The judgment in the case last mentioned was properly re