Opinion of the Court. in the defence of the action, and need not have been made the subject of specific allegations in the petition. It was not necessary to allege in the petition that the engine, boilers, and pumps were ascertained by the defendants to work to their entire satisfaction. It was sufficient to allege the delivery of the articles, and the expiration of the time limited in the contract for the payments. In respect to the guaranty of the plaintiff that the engines, boilers, and pumps would work, and that the engines would furnish the stipulated amount of horse power, and be as economical of fuel and as durable as a Corliss non-condensing engine, it need only be said that those were, also, matters to be alleged and proved by defendants in support of their counter claim. For these reasons we are of opinion that the court properly overruled the motion of defendants to exclude all evidence in support of the first count of the petition. 3. The defendants in their answer deny the material allegations of the petition; and by way of counter claim allege that on or about the twenty-second day of June, 1888, the defendants, as the plaintiff then well knew, were the owners of all the capital stock of the Lincoln Paper Manufacturing Company, a corporation duly organized under the laws of Nebraska for the purpose of manufacturing paper in the city of Lincoln, in that State; and that on or about that date the plaintiff entered into the contract with the defendants, set forth in the first count of the petition, for the furnishing of boilers, engines, and machinery to generate and apply the power with which to drive the machinery to be used by them in said mill for the manufacture of wrapping and straw building board; that the plaintiff then well knew that, if said boilers, engines and machinery were not of the capacity and efficiency specified in the contract, then the defects and inefficiency of such machinery would of necessity cause the defendants great injury, cost, and damage in and about their manufacturing business, by reducing the quantity and degrading the quality of the paper to be manufactured at their mill, and by putting them to great cost and expense for loss of time and for labor, fuel, and material used, lost, and expended above such as Opinion of the Court. would be required with the use of boilers, engines, and machinery of the kind, power, effectiveness and economy specified in the contract; that the defendants entered into the contract in the expressed confidence, assurance and belief that the plaintiff would furnish for use in their mill boilers, engines, and machinery of the kind, quality, power, and description in the contract set forth; yet the plaintiff, in pretended compliance with the contract, furnished and erected in said mill three boilers of a capacity not exceeding sixty-five horse power each, and one engine of one hundred and twentyfive, and one of fifty horse power, and that said engines and boilers have at all times and still do consume in the performance of the work of which they are capable not less than fifty per cent more fuel than would be consumed in the performance of the same work by a non-condensing Corliss engine; and that plaintiff furnished with said boilers and engines defective and insufficient grates, fixtures, and appliances therefor, so that the same were for a long time less capable and effective than they would otherwise have been. The defendants further alleged in their counter claim that, at the request of plaintiff, they allowed it, after the date of the erection of said machinery, to consume a long time in the attempt or pretended attempt to adjust the boilers, engines, and machinery, and supply them with grates and fittings so that the same would meet the requirements and descriptions of the contract, all of which attempts, or pretended attempts, have wholly and completely failed; that thereupon, on or about the eleventh day of January, 1889, and the eleventh and twenty-fifth days of February of said year, they duly notified the plaintiff, by letters properly transmitted through the United States mails, that such boilers, engines, and machinery were wholly inadequate, inefficient, and wasteful of fuel as compared with the requirements and descriptions of the contract, and demanded of it to remove the same from said mill and pay defendants the amount of money, to wit, $690.68, paid by them to and for the use of plaintiff under the contract and the damages suffered by reason of the premises, as by the contract it had undertaken to do, with which request Opinion of the Court. the plaintiff has at all times neglected, and still wholly neglects and refuses to comply; and that by reason of the premises, of the wasteful consumption of fuel and lack of power, said boilers, engines, and machinery, and the consequent loss of time and labor, and the diminution in quantity and deterioration in quality of the output of said mill resulting from the non-compliance by plaintiff with the contract in the respects and particulars set forth, and in the purchase and supplying new grate bars and heater fittings and fixtures for such boilers and engines, the defendants have been damaged in the sum of ten thousand dollars. An account of the moneys so alleged to have been paid was annexed to the counter claim. The plaintiff, in reply, denies that the machinery, etc., furnished by it, under the contract, was defective, and charges that their inefficiency, if they became inefficient, was due entirely to the unskilful and incompetent management of the defendants, their agents, and servants. While it denies that the defendants were the owners of "all" the capital stock of the Lincoln Paper Manufacturing Company, it does not deny that the machinery, etc., was purchased to be used in the mill of that company. The defendant Utt was sworn as a witness for the defence, and, as we infer, in support of the counter claim. Having stated that he and Buckstaff, in April, 1888, first commenced negotiations for the purchase of the boilers with Mr. Giddings, representing Russell & Co., the following questions were put, successively, to him: 1. "What conversation did you have with him, if any, about the purpose for which the machine must be used and the necessity for steam capacity in the boilers?" 2. "You may state in what your damages consisted, and the amount in consequence of the defective construction and the failure of this machinery to perform its labor, and the labor required of it by the terms of the contract from the time of its erection up to the first day of March." 3. "You may state what damage you sustained in consequence of the failure of this machinery to do the work at the paper mill." 4. "You may state what loss you suffered in consequence of the defective construction and failure in the machinery." 5. "In Opinion of the Court. what particular did you and the defendant Buckstaff sustain loss by reason of the defects in the construction and the failure of this machinery?" Each of these questions was objected to upon the ground that it was incompetent, irrelevant, and immaterial. No one of them was objected to upon the ground that it was a leading question. In the case of Shauer v. Alterton, ante, 607, just decided, it was held to be the settled construction of the twenty-first rule of this court that an assignment of error, based upon the exclusion of an answer to a particular question in the deposition of a witness, would be disregarded here, unless the record sets forth the answer or its full substance. Packet Company v. Clough, 20 Wall. 528, 542; Railroad Co. v. Smith, 21 Wall. 255, 262; Thompson v. First National Bank of Toledo, 111 U. S. 529, 535-6. Our rule, thus construed, is one to which parties can easily conform. Having access to the deposition containing the answer of the witness to the interrogatory, parties, as well as the trial court, are informed of the precise nature of the evidence offered. The requirement that an assignment of error, based upon the admission or rejection of evidence, must, in the case of a deposition, excluded in whole or in part, state the full substance of the evidence so admitted or rejected, means that the record must show, in appropriate form, the nature of such evidence, in order that this court may determine whether or not error has been committed to the prejudice of the party bringing the case here for review. But this rule does not apply where the witness testifies in person, and where the question propounded to him is not only proper in form, but is so framed as to clearly admit of an answer favorable to the claim or defence of the party producing him. It might be very inconvenient in practice if a party, in order to take advantage of the rulings of the trial court in not allowing questions, proper in form and manifestly relevant to the issues, were required to accompany each question with a statement of the facts expected to be established by the answer to the particular question propounded. Besides, and this is a consideration of some weight, such a statement, in Opinion of the Court. open court, and in the presence of the witness, would often be the means of leading or instructing him as to the answer desired by the party calling him. If the question is in proper form and clearly admits of an answer relevant to the issues and favorable to the party on whose side the witness is called, it will be error to exclude it. Of course, the court, in its discretion, or on motion, may require the party, in whose behalf the question is put, to state the facts proposed to be proved by the answer. But if that be not done, the rejection of the answer will be deemed error or not, according as the question, upon its face, if proper in form, may or may not clearly admit of an answer favorable to the party in whose behalf it is propounded. Tested by these views, the court below erred in not permitting the defendant Utt to answer the above questions. Each one of them was relevant to the counter claim, and each admitted of an answer that tended to support it. After the court below refused to allow the defendant Utt to answer the above questions, he was asked: "You may state in what manner your industry was affected by the failure of this machinery." The witness answered: "When our mill was erected, we made contracts with different parties to put in certain machinery. In cutting straw there is a large amount of steam required. We purchased from Neill patent boilers at an expense of five thousand dollars, to be cooked with steam coming from the boilers. That was the proper way to do it. A lack of steam in the plant that we purchased made it impossible for us to cook this straw in these boilers, so after trying six or eight weeks to do this with this steam and succeeding very poorly, we took steam from the escape system that we had made in connection with the big engine, and since that time we have been using that steam, but it does not cook the straw well because the water condenses in these globe bleachers and has to be let out, and with them the liquor passes out that the straw is cooked in, and it makes an uneven cooking of the straw; it is not uniform. The straw is frequently tough, so that we take it over to the grinding machine, where it is ground up. Instead of grinding it up in two hours and a |