McMillan, J.
By the Cowrt This is an action brought to recover damages for a breach of a contract to r ship and transport certain wheat from Ottawa, in Minnesota, to Milwaukee. The agreement set up in the complaint is as follows :
“This agreement made this fifteenth day of April, A.D. 1864, between William F. Davidson of the first part, and Archibald S. Cowley, of the city of St. Paul, Minn., of the second part, witnesseth: That the said Davidson hereby covenants and agrees to ship, transport and carry from Ottawa, LeSueur county, Minnesota, to Milwaukee, in the State of Wisconsin, five thousand bushels of wheat, to be delivered at Milwaukee to Miles & Armour; and for such shipping, transporting and delivering, to receive at the rate of' thirty-three cents per bushel; to be conveyed in sacks, if sacks shall be furnished by said Cowley; but so much of said wheat as shall not .be furnished in sacks the said Davidson shall convey in bulk, or in sacks to be furnished by himself, and for so ’much as he shall convey in sacks furnished by himself he shall receive at the rate of one cent per bushel additional. Said wheat to be delivered at Milwaukee on or before the 20th of May, A.D. 1864. The said Cowley to deliver said wheat to said David[99]*99son on the bank of the river at Ottawa aforesaid, at the usual place of shipping there, and. in the usual manner, upon reasonable notice of his, said Davidson’s, readiness to receive the same. The sacks belonging to said Cowley to be returned to him at St. Paul. It is mutually agreed that in case of failure of said Davidson to deliver said wheat, or any part thereof, at the time and place hereinbefore particularly specified, the said Davidson will deliver to said Miles & Armour, at said time and place, and said Cowley will accept if so delivered within said time, the said amount of No. 1 wheat, or a sufficient quantity of No. 1 wheat to make up the deficiency in the amount so to be delivered.
In witness whereof the said parties have hereto subscribed their names the day and year first above written.
The usual dangers of river navigation and fire excepted to the above contract.
¥m. P. Davidson.
A. S. Cowley.”
“If said Cowley shall require the above-mentioned wheat to be delivered to other parties in Milwaukee than the above mentioned, he has the privilege to change the consignment, without additional for freight, and to be delivered on same conditions as above written.
On the trial of the cause, the plaintiff having offered his proofs and rested his case, the defendant having been called as a witness in his own behalf, testified to the making of the contract with Cowley, and that he was at the time engaged in the carrying business by water, more especially on the Mississippi and Minnesota rivers. The defendant’s counsel then asked the witness the following question :
“Do you know the condition of the Minnesota river as to [100]*100navigability on and after the 15th day of April, A.‘ D. 1864, during the season of that year between Ottawa and St. Paul, and if so, state what such condition was ? ” To which the plaintiff objected as incompetent and immaterial. The objection was sustained and defendant excepted.
This action is based upon an express executory contract of the defendant to transport this wheat; the defense is, that the unprecedented low water in the Minnesota river between Ottawa and the mouth of the river prevented the performance of the contract. There is no such exception in the contract.
The rule well settled is, that if a j>arty enter into an .absolute contract, without qualification or exception, he must abide by the contract, and either do the act or pay the damages ; the perforriiance is not excused by an inevitable accident or other contingency, although not foreseen by, or within the control of the party. Chitty on Contr. 734; Beebe vs. Johnson., 19 Wend., 502; Harmony vs. Bingham,, 12 N. Y. 99.
The only exceptions in this contract are the usual dangers of river navigation and fire ; the defense is not that the dangers of navigation rendered it impossible or impracticable to perform the contract, but that the low state of water rendered the stream unnavigable for any water craft during the season. There must be navigation before there can exist any dangers of navigation ; the want of navigation is not excepted. As the contract in this case wras to transport the wheat to, and deliver it at Milwaukee at the time specified, or deliver other No. 1 wheat in its stead at that time and jilace, although the river was unnavigable, it did not render the contract impossible of performance. The question was therefore immaterial, and the objection1 was properly -sustained.
The game principle will exclude the further offer of the defendant to prove “ that the navigation.of the Minnesota river from Ottawa, down, on and after the 15th day of April,-1864, [101]*101and until the opening of navigation in the spring of 1865, was impracticable by reason of the low stage of water in said river, and that for that reason it was impossible for the defendant to transport the wheat in controversy on or after the 15th day of April, 1864, during the season and before the opening of navigation in 1865.”
The defendant upon the trial further offered to prove “that at and upon the opening of navigation on the Minnesota river in the spring of 1865, the defendant offered to the plaintiff to receive the said wheat at Ottawa, and transport it and deliver it at Milwaukee pursuant to the terms of the contract alleged in the complaint, and that the plaintiff then refused to deliver the defendant the said wheat ” ; to which the plaintiff’s counsel objected, and. the objection was sustained by the Court. There is an express provision in this contract as to the time within which the transportation' shall be performed, and -the wheat delivered at Milwaukee, with an alternative that if the wheat is not delivered at Milwaukee within the time specified, namely, on or before the 20th day of May, 1864, other wheat shall be delivered as specified therein. Time is manifestly of the essence of this contract; the agreement must be performed within the time specified, or it cannot be performed at all. The circumstances which prevented the transportation of the wheat within the time specified in the contract did not excuse the defendant, or relieve him from liability, neither did it suspend the performance of the contract. The failure to perform at the time specified in the contract was a breach of the contract, and the offer to transport the wheat the next spring was immaterial.
The question propounded to the witness Davidson: “What kind of wheat did these receipts which Cowley proposed to turn over to you call for?” and also the offer of defendant’s counsel to prove “ that the receipts which Cowley [102]*102proposed to transfer to the defendant, by way of delivering to him the wheat at Ottawa, did not call for No. 1 wheat, but simply for merchantable wheat,” were 'properly rejected.
It appears from the testimony of Davidson, himself, that the interview had with the plaintiff about the 18th of May, 1861, did not result in any agreement between the parties; the contract was therefore unaffected by it, and the negotiations were immaterial. ,
The wheat receipts had nothing to do with the contract.
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McMillan, J.
By the Cowrt This is an action brought to recover damages for a breach of a contract to r ship and transport certain wheat from Ottawa, in Minnesota, to Milwaukee. The agreement set up in the complaint is as follows :
“This agreement made this fifteenth day of April, A.D. 1864, between William F. Davidson of the first part, and Archibald S. Cowley, of the city of St. Paul, Minn., of the second part, witnesseth: That the said Davidson hereby covenants and agrees to ship, transport and carry from Ottawa, LeSueur county, Minnesota, to Milwaukee, in the State of Wisconsin, five thousand bushels of wheat, to be delivered at Milwaukee to Miles & Armour; and for such shipping, transporting and delivering, to receive at the rate of' thirty-three cents per bushel; to be conveyed in sacks, if sacks shall be furnished by said Cowley; but so much of said wheat as shall not .be furnished in sacks the said Davidson shall convey in bulk, or in sacks to be furnished by himself, and for so ’much as he shall convey in sacks furnished by himself he shall receive at the rate of one cent per bushel additional. Said wheat to be delivered at Milwaukee on or before the 20th of May, A.D. 1864. The said Cowley to deliver said wheat to said David[99]*99son on the bank of the river at Ottawa aforesaid, at the usual place of shipping there, and. in the usual manner, upon reasonable notice of his, said Davidson’s, readiness to receive the same. The sacks belonging to said Cowley to be returned to him at St. Paul. It is mutually agreed that in case of failure of said Davidson to deliver said wheat, or any part thereof, at the time and place hereinbefore particularly specified, the said Davidson will deliver to said Miles & Armour, at said time and place, and said Cowley will accept if so delivered within said time, the said amount of No. 1 wheat, or a sufficient quantity of No. 1 wheat to make up the deficiency in the amount so to be delivered.
In witness whereof the said parties have hereto subscribed their names the day and year first above written.
The usual dangers of river navigation and fire excepted to the above contract.
¥m. P. Davidson.
A. S. Cowley.”
“If said Cowley shall require the above-mentioned wheat to be delivered to other parties in Milwaukee than the above mentioned, he has the privilege to change the consignment, without additional for freight, and to be delivered on same conditions as above written.
On the trial of the cause, the plaintiff having offered his proofs and rested his case, the defendant having been called as a witness in his own behalf, testified to the making of the contract with Cowley, and that he was at the time engaged in the carrying business by water, more especially on the Mississippi and Minnesota rivers. The defendant’s counsel then asked the witness the following question :
“Do you know the condition of the Minnesota river as to [100]*100navigability on and after the 15th day of April, A.‘ D. 1864, during the season of that year between Ottawa and St. Paul, and if so, state what such condition was ? ” To which the plaintiff objected as incompetent and immaterial. The objection was sustained and defendant excepted.
This action is based upon an express executory contract of the defendant to transport this wheat; the defense is, that the unprecedented low water in the Minnesota river between Ottawa and the mouth of the river prevented the performance of the contract. There is no such exception in the contract.
The rule well settled is, that if a j>arty enter into an .absolute contract, without qualification or exception, he must abide by the contract, and either do the act or pay the damages ; the perforriiance is not excused by an inevitable accident or other contingency, although not foreseen by, or within the control of the party. Chitty on Contr. 734; Beebe vs. Johnson., 19 Wend., 502; Harmony vs. Bingham,, 12 N. Y. 99.
The only exceptions in this contract are the usual dangers of river navigation and fire ; the defense is not that the dangers of navigation rendered it impossible or impracticable to perform the contract, but that the low state of water rendered the stream unnavigable for any water craft during the season. There must be navigation before there can exist any dangers of navigation ; the want of navigation is not excepted. As the contract in this case wras to transport the wheat to, and deliver it at Milwaukee at the time specified, or deliver other No. 1 wheat in its stead at that time and jilace, although the river was unnavigable, it did not render the contract impossible of performance. The question was therefore immaterial, and the objection1 was properly -sustained.
The game principle will exclude the further offer of the defendant to prove “ that the navigation.of the Minnesota river from Ottawa, down, on and after the 15th day of April,-1864, [101]*101and until the opening of navigation in the spring of 1865, was impracticable by reason of the low stage of water in said river, and that for that reason it was impossible for the defendant to transport the wheat in controversy on or after the 15th day of April, 1864, during the season and before the opening of navigation in 1865.”
The defendant upon the trial further offered to prove “that at and upon the opening of navigation on the Minnesota river in the spring of 1865, the defendant offered to the plaintiff to receive the said wheat at Ottawa, and transport it and deliver it at Milwaukee pursuant to the terms of the contract alleged in the complaint, and that the plaintiff then refused to deliver the defendant the said wheat ” ; to which the plaintiff’s counsel objected, and. the objection was sustained by the Court. There is an express provision in this contract as to the time within which the transportation' shall be performed, and -the wheat delivered at Milwaukee, with an alternative that if the wheat is not delivered at Milwaukee within the time specified, namely, on or before the 20th day of May, 1864, other wheat shall be delivered as specified therein. Time is manifestly of the essence of this contract; the agreement must be performed within the time specified, or it cannot be performed at all. The circumstances which prevented the transportation of the wheat within the time specified in the contract did not excuse the defendant, or relieve him from liability, neither did it suspend the performance of the contract. The failure to perform at the time specified in the contract was a breach of the contract, and the offer to transport the wheat the next spring was immaterial.
The question propounded to the witness Davidson: “What kind of wheat did these receipts which Cowley proposed to turn over to you call for?” and also the offer of defendant’s counsel to prove “ that the receipts which Cowley [102]*102proposed to transfer to the defendant, by way of delivering to him the wheat at Ottawa, did not call for No. 1 wheat, but simply for merchantable wheat,” were 'properly rejected.
It appears from the testimony of Davidson, himself, that the interview had with the plaintiff about the 18th of May, 1861, did not result in any agreement between the parties; the contract was therefore unaffected by it, and the negotiations were immaterial. ,
The wheat receipts had nothing to do with the contract. The plaintiff was bound to deliver wheat at Ottawa, not wheat receipts at St. Paul. If the defendant saw proper to receive wheat receipts as a delivery of the wheat under the contract, he could do so, but he could not require the plaintiff to deliver him receipts at St. Paul, or elsewhere, of to guarantee that the receipts called for No. 1 wheat. Again, if these receipts- were material at all, they were material as forming part of a subsequent agreement between the parties, by which the terms of the original contract were modified; they were then as directly involved in the issue as the -contract itself, and between the same parties ; they were therefore the best evidence of their terms, and their contents could not be proved by parol.
The defendant’s counsel requested the. Court to charge, ££ that if the jury believe from the evidence that the defendant on or about the 18th of May, A. D. 186,1, or at any time prior to or on the 20th day of May, 1861, offered to deliver to Miles and Armour, at Milwaukee, on or before said 20th day of May, A. D. 1861, for account of said plaintiff, 5000 bushels of No. 1 wheat, they must find for the defendant.” Which instruction the Court refused to give as above, but gave it with the qualification “ that defendant had no right to require the plaintiff to guarantee that the wheat at Ottawa should pass inspection at Milwaukee as No. 1 wheat.”
[103]*103The only testimony relating to an offer to deliver wheat to Miles & Armour is that of the defendant himself, who states that he had an interview with the plaintiff in St. Paul about the' 18th of May, 1864, a little before the time named in the contract for the delivery of the wheat at Milwaukee; respecting supplying him with the wheat at Milwaukee, he says : “ I then offered to deliver to Miles & Armour, at Milwaukee, for plaintiff, 5,000 bushels of No. 1 wheat on or before the 20th day of May, A. D.1864, or at once if he wished. I made arrangements with Miles & Armour by telegraph to do this.” On his cross-examination he says: “ At the interview referred to I required of Cowley that the wheat at Ottawa should be equal in amount and quality to the wheat I delivered him at Milwaukee;' Cowley was to turn over the wheat receipts which he held to me, and guarantee the wheat represented by them to be No. 1, and of the amount called for. I would not deliver the wheat to Miles & Armour for him, unless he gave me a written guaranty that he had the amount of wheat at Ottawa, and as good as that I was to deliver him at Milwaukee.” * * * “ It might have been my requirement that the wheat I was to get from him should pass inspection as No. 1 wheat in Milwaukee. I’ think it probably was. The writing drawn by Mr. Rhodes provided that the wheat at Ottawa should pass inspection as No. 1 wheat at Milwaukee.” “ Cowley declined to give the guaranty, and the matter dropped.” The instruction desired was properly refused, because there was no testimony whatever of an unqualified offer such as that embraced therein, and the condition stated in the charge as given was expressly attached to the only offer of delivering, which appears in the testimony. As we have already observed, the defendant had no right to attach this condition to his offer; there was no error therefore in the refusal of the Court to charge as desired, or in giving the charge [104]*104as modified, although, perhaps, the whole 'testimony was immaterial.
The views we have expressed also dispose of the instruction given by the Court in accordance with the second request submitted by the plaintiff. .
The Court charged the jury that “ the rule of damages in this case is the difference between the value of No. 1 wheat at Milwaukee, on said 20th day of May, 1864, and the-price of wheat, of same quality, at same time, in said Ottawa, with" costs of transportation from said Ottawa to s.aid Milwaukee, at the rate mentioned in the contract added,'together with interest thereon from May 20, 1864.” This was the correct rule of' damages in this case. The wheat in question was to have been received and taken by the defendant at Ottawa, and carried to and delivered at Milwaukee, for the compensation specified in the contraction or before'the 20th day of May, 1864, or other No. 1 wheat was to be delivered at that time and place in its stead.
No part of the contract was ever fulfilled by the defendant; he did not receive the goods under the contract; they still remain in the possession of the plaintiff, so that the wheat at Ottawa was not lost to the plaintiff; but the breach of the contract was complete by the non-delivery of the Ottawa wheat, or the alternative wheat, at Milwaukee on the 20th of May; then the damages resulted, if any. What were they ? The wheat was not lost, but it was at Ottawa, and not at Milwaukee, as it should have been ; if, therefore, it was worth more at Milwaukee than Ottawa at that time, the plaintiff, if the contract had been performed, would have had that advantage; and because the contract was not performed he lost it; and as, if the contract had been performed, the contract price for carrying the wheat would have been'paid by the plaintiff to the defendant, that must also- be deducted in determining the [105]*105loss. The transaction to which the contract related was complete,-and the rights of- the parties under such contract were determined on the 20 th of May. The plaintiff must wait till the defendant made default, and when that occurred he was not bound, for the purpose of relieving the' defendant from the consequences of his default, or retrieving the loss on his own part, to carry the wheat subsequently, from Ottawa to Milwaukee, or any other place. The fact that he might have made more out of the wheat at a subsequent time by sending it to Milwaukee, cannot affect his rights as against the defendant. If so, he might be required to keep it till a more favorable season, and to send it to another market, that greater profit should result from it, and the defendant have the benefit of the enhanced price. "Upon principle, we think, the charge was clearly right, and it is sustained by authority. 3 Pars. on Contr. (5th Pd.), p. 193; Brackett vs. McNair, 14 Johns, 170; O’Conner vs. Foster, 10 Watts, 418.
The case as presented in the paper-book does not contain all the testimony on the trial; the presumption is, therefore, that there was testimony on all points sufficient to sustain the verdictand it appears from the paper-book that the plaintiff testified among other things that very soon after -the commencement of this action he sold and transferred all the said-wheat which he had at Ottawa to one P. 8. Pdgerton. Under the contract, and the circumstances in this case, it whs not incumbent on the plaintiff to prove an offer in the first instance to deliver the wheat to defendant. "We see no error in the proceedings; the judgment should be affirmed.