Stafford, J.
The plaintiff deals in slate in Philadelphia. The defendant manufactures the same at Granville, N. Y. The parties have dealt with each other for some time. The present action is for failing to deliver slate according to contract. In a letter of April 29, 1899, the defendant offered to supply the plaintiff, after June, not to exceed one thousand squares per month, at stated prices; and two days later the plaintiff, by letter, accepted the offer to the amount of one thousand squares per month for the six months beginning with July. Delivery was to be made on the cars at Granville. These two letters, which malee up the contract so far as it was put in words, do' not say when paymtent should be made, nor how. . The plaintiff claimed that the only contract in this respect was the one the law would import, — cash on delivery,— while the defendant claimed that the previous course of dealing was understood to govern, whereby the plaintiff was to send his notes about the 15th of each month to cover the shipments of the succeeding month; and the jury were left to say whether there was such an established course of dealing, and whether it formed a part of the present contract. The jury were also told that one thousand squares were due each month, if orders for that amount were seasonably forwarded, and that in view of the evidence they were to say whether there was a well [387]*387known usage of trade that such orders should cover a reasonable range of sizes, and, if so, were told that such usage was a part of the contract. They were also told that the defendant was not responsible for any delay caused by the failure of the railroad to furnish cars. The main question was, which party broke the contract? The plaintiff claimed that it was the defendant who first broke it by failing to deliver the one thousand squares due in July. Although the defendant did deliver more than one thousand squares in July, a part were to be applied on a previous and separate contract between the parties, leaving less than one thousand squares to be applied on the contract in question; but the defendant claimed that the plaintiff waived delivery of the full amount due in July under the present contract, in order that the earlier contract might be filled; and that for that reason he was not in default; but that the plaintiff was the first to-break: the contract, by failing to advance his notes August x 5th, as well as by taking an unwarranted position in. one of his letters, — that of August 7th. The plaintiff obtained a verdict, and the case is here on exceptions by the defendant, which we shall take up in the order in which they are presented by his brief.
1. He excepted to the supposed failure to charge that he could not be held responsible for not delivering the contract quantity if the plaintiff had not seasonably furnished him- with orders therefor, his evidence tending to show the plaintiff did not keep him supplied with orders.
We think there was no real failure upon this point. The principle contended for was recognized throughout the charge. In stating at the beginnning that the contract calls for one thousand squares each month, the court adds, “if orders for that amount are seasonably forwarded.” Twice afterwards reference is made to the same condition, — once in saying that the defendant’s failure to deliver constituted a breach of the. [388]*388contract, unless there had been a waiver, or “unless the defendant was excused from completing the delivery for some of the other reasons before stated;” and finally in the sentence, “This brings you back to the question, was the defendant’s failure to fill the plaintiff’s orders a breach of the contract, or something for which he was excused on the grounds before stated.” If the rule was not given more prominence it was probably because the defendant was insisting more strenuously that the orders which were furnished did not cover a sufficient range, leading the court to deal more particularly with that claim, and because it was too obvious to> need much comment that the plaintiff could not complain of not receiving what he had not asked for. We are satisfied that the jury could not have been in doubt upon this point.
2. He excepted to the supposed failure to comply with three special requests, and to the charge upon those subjects:
(a) To tell the jury that the letter of August 7th was a demand which the plaintiff had no right to> make.
This letter, in its material part, was as follows: “If you don’t ship my orders to the exclusion of all others until you have reimbursed me for the advances, I shall put the matter in the hands of my attorney in Vermont and let him do the settling.” It was evidently the plaintiff’s answer to the defendant’s claim that he could not supply all his customers. The court properly told the jury: “The defendant’s inability to produce slate fast enough to meet the demands of his customers generally is no- defense. The plaintiff was entitled to> stand upon his contract, and insist that his orders should be filled.” The plaintiff now insists that the jury might have read the letter as a demand that the defendant should ship slate to the amount of the advancements immediately, and regardless of the usage that the advancements should cover the shipments of the succeeding month. But we are not advised of any evi[389]*389dence which could have justified that reading. The court properly told the jury that this letter in itself did not constitute a breach of the contract. Even' an excessive demand would not excuse from a proper performance. Colby v. Reed, 99 U. S. 560, 564; 25 L. Ed. 486.
August 22d the defendant notified the plaintiff that the contract was at an end because the plaintiff had not put up his notes on the 15th. The plaintiff's answer was that the defendant was in no position to- complain, having failed to ship slate to cover the notes already up. The court told the jury that it was not what the parties had demanded of each other in their letters that was to determine who broke the contract, but which one first failed to- do- what he was bound to do-; that the defendant’s notice, on the 22d, that the contract was at an end, constituted a breach, unless the plaintiff was already in default by reason of his failure to- advance his notes on the x 5th; and that whether that constituted a breach depended on whether the defendant had shipped slate enough to cover the previous advancements, — or had been excused therefrom by the waiver of the plaintiff. This we think was correct and sufficient.
(b) That “if the delay in delivery was due in whole or in part to the. scarcity of cars, the defendant was not responsible for it.”
This request was unsound in form, as it would excuse the defendant for all delay if only a part o-f it were caused by scarcity of cars; but the charge upon the subject was all the defendant had a right to ask even if his request had been proper.
(c) That if the delay arose from the orders being of in-' sufficient range in point of size, the defendant was not responsible therefor.
This request was substantially complied with. Both (b) and (c) have further clauses based upon the same misreading of the letter of August 7th, already commented upon under (a).
[390]*3903.
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Stafford, J.
The plaintiff deals in slate in Philadelphia. The defendant manufactures the same at Granville, N. Y. The parties have dealt with each other for some time. The present action is for failing to deliver slate according to contract. In a letter of April 29, 1899, the defendant offered to supply the plaintiff, after June, not to exceed one thousand squares per month, at stated prices; and two days later the plaintiff, by letter, accepted the offer to the amount of one thousand squares per month for the six months beginning with July. Delivery was to be made on the cars at Granville. These two letters, which malee up the contract so far as it was put in words, do' not say when paymtent should be made, nor how. . The plaintiff claimed that the only contract in this respect was the one the law would import, — cash on delivery,— while the defendant claimed that the previous course of dealing was understood to govern, whereby the plaintiff was to send his notes about the 15th of each month to cover the shipments of the succeeding month; and the jury were left to say whether there was such an established course of dealing, and whether it formed a part of the present contract. The jury were also told that one thousand squares were due each month, if orders for that amount were seasonably forwarded, and that in view of the evidence they were to say whether there was a well [387]*387known usage of trade that such orders should cover a reasonable range of sizes, and, if so, were told that such usage was a part of the contract. They were also told that the defendant was not responsible for any delay caused by the failure of the railroad to furnish cars. The main question was, which party broke the contract? The plaintiff claimed that it was the defendant who first broke it by failing to deliver the one thousand squares due in July. Although the defendant did deliver more than one thousand squares in July, a part were to be applied on a previous and separate contract between the parties, leaving less than one thousand squares to be applied on the contract in question; but the defendant claimed that the plaintiff waived delivery of the full amount due in July under the present contract, in order that the earlier contract might be filled; and that for that reason he was not in default; but that the plaintiff was the first to-break: the contract, by failing to advance his notes August x 5th, as well as by taking an unwarranted position in. one of his letters, — that of August 7th. The plaintiff obtained a verdict, and the case is here on exceptions by the defendant, which we shall take up in the order in which they are presented by his brief.
1. He excepted to the supposed failure to charge that he could not be held responsible for not delivering the contract quantity if the plaintiff had not seasonably furnished him- with orders therefor, his evidence tending to show the plaintiff did not keep him supplied with orders.
We think there was no real failure upon this point. The principle contended for was recognized throughout the charge. In stating at the beginnning that the contract calls for one thousand squares each month, the court adds, “if orders for that amount are seasonably forwarded.” Twice afterwards reference is made to the same condition, — once in saying that the defendant’s failure to deliver constituted a breach of the. [388]*388contract, unless there had been a waiver, or “unless the defendant was excused from completing the delivery for some of the other reasons before stated;” and finally in the sentence, “This brings you back to the question, was the defendant’s failure to fill the plaintiff’s orders a breach of the contract, or something for which he was excused on the grounds before stated.” If the rule was not given more prominence it was probably because the defendant was insisting more strenuously that the orders which were furnished did not cover a sufficient range, leading the court to deal more particularly with that claim, and because it was too obvious to> need much comment that the plaintiff could not complain of not receiving what he had not asked for. We are satisfied that the jury could not have been in doubt upon this point.
2. He excepted to the supposed failure to comply with three special requests, and to the charge upon those subjects:
(a) To tell the jury that the letter of August 7th was a demand which the plaintiff had no right to> make.
This letter, in its material part, was as follows: “If you don’t ship my orders to the exclusion of all others until you have reimbursed me for the advances, I shall put the matter in the hands of my attorney in Vermont and let him do the settling.” It was evidently the plaintiff’s answer to the defendant’s claim that he could not supply all his customers. The court properly told the jury: “The defendant’s inability to produce slate fast enough to meet the demands of his customers generally is no- defense. The plaintiff was entitled to> stand upon his contract, and insist that his orders should be filled.” The plaintiff now insists that the jury might have read the letter as a demand that the defendant should ship slate to the amount of the advancements immediately, and regardless of the usage that the advancements should cover the shipments of the succeeding month. But we are not advised of any evi[389]*389dence which could have justified that reading. The court properly told the jury that this letter in itself did not constitute a breach of the contract. Even' an excessive demand would not excuse from a proper performance. Colby v. Reed, 99 U. S. 560, 564; 25 L. Ed. 486.
August 22d the defendant notified the plaintiff that the contract was at an end because the plaintiff had not put up his notes on the 15th. The plaintiff's answer was that the defendant was in no position to- complain, having failed to ship slate to cover the notes already up. The court told the jury that it was not what the parties had demanded of each other in their letters that was to determine who broke the contract, but which one first failed to- do- what he was bound to do-; that the defendant’s notice, on the 22d, that the contract was at an end, constituted a breach, unless the plaintiff was already in default by reason of his failure to- advance his notes on the x 5th; and that whether that constituted a breach depended on whether the defendant had shipped slate enough to cover the previous advancements, — or had been excused therefrom by the waiver of the plaintiff. This we think was correct and sufficient.
(b) That “if the delay in delivery was due in whole or in part to the. scarcity of cars, the defendant was not responsible for it.”
This request was unsound in form, as it would excuse the defendant for all delay if only a part o-f it were caused by scarcity of cars; but the charge upon the subject was all the defendant had a right to ask even if his request had been proper.
(c) That if the delay arose from the orders being of in-' sufficient range in point of size, the defendant was not responsible therefor.
This request was substantially complied with. Both (b) and (c) have further clauses based upon the same misreading of the letter of August 7th, already commented upon under (a).
[390]*3903. He excepted to- the charge upon the measure of damages, which was: “If the plaintiff is entitled to recover, he is entitled to- the difference between the contract price and the advanced market price on whatever slate was not actually delivered, and in addition thereto-, the balance of the amount paid, for which he has received no slate. The last item is $573.36. The undelivered slate was 4,219 squares.”
The verdict, omitting interest, was $2,260.96. If we deduct $573.36, the amount paid, we have $1,687.60. From which it appears that the jury allowed forty cents per square.
The rule laid down is the rule of Our cases. Worthen v. Wilmot, 30 Vt. 555; Hill v. Smith, 32 Vt. 433; Copper Co. v. Copper Mining Co., 33 Vt. 92. The defendant does not question this, but contends that a different rule had been adopted, against his objection, as the evidence was going in, and that the same rule should have been adhered to in the charge. What the exceptions show is this:
The plaintiff in his opening called witnesses whose testimony tended to show that during the period covered by this contract they sold and delivered to the plaintiff, at several times, various given quantities o-f slate at prices which they stated, ranging from thirty to fifty - cents per square higher than the prices fixed by the contract in question. This evidence being objected to, the plaintiff claimed that by reason of the breach of this contract he was compelled to purchase from others to fill his orders, and that the extra price thus paid constituted the measure and proof of his damages. To the admission of this evidence the defendant excepted, but that exception is not relied upon here. The defendant introduced no evidence touching the market price.
To the rule as to the measure of damages in the charge, the defendant excepted “especially for that the other rule was invoked by the plaintiff in his opening case, and the ruling re[391]*391lied upon by the defendant; so that the defendant introduced no evidence bearing upon the rule as stated.” The defendant in his brief says that the plaintiff’s testimony tended to show that the market price ran fifty cents per square higher'than the contract price throughout the period covered by the contract; and the plaintiff in his brief admits it. The plaintiff’s evidence also tended to show that the deficiency was not fully supplied by these other purchases. S01 that, although the verdict was evidently not for the full rise in market price, we cannot say from the record before us that it did not exceed the difference between the contract price and the price actually paid; and for that part, at least, which was not supplied by other purchases, the damages must under the charge have been fixed by the market price. Indeed, the position now taken by the plaintiff himself is that the market price should govern only as to' the quantity which he did not supply, and that as to the residue the price actually paid, being less than the market price, should control. But this is not the rule that was given to' the jury. In view of the position taken by the plaintiff as the evidence went in, and the defendant’s apparent reliance thereon, we think the damages ought to have been limited, at least to the extent of the slate supplied by other purchases, to the prices actually paid therefor.
This exception is sustained.
4. He also complains of this portion of the charge because it permits the recovery of the advancement for which no slate had been received.
His evidence tended to show that he offered to deliver this slate, but the plaintiff withdrew his orders and would not receive it. Just when the offer was made does not appear, but we infer from the argument, as we should also be required to infer from the case itself in support of the judgment, that it [392]*392was after breach, and after the expiration of the time within which the slate was toi be delivered.
Upon breach the plaintiff’s right of action accrued, and could not be defeated nor affected by a subsequent offer to perform. Gould v. Banks, 8 Wend. 562, 24 Am. Dec. 90. Even the right toi pay in specific goods rather than in cash, although an- option of the debtor as our cases hold, must be exercised within the contract period; -otherwise, the creditor may insist upon his money. Smith v. Coolidge, 68 Vt. 516, 35 Atl. 432, 54 Am. St. Rep. 902.
This exception is not sustained.
5. He excepted to the admission of evidence touching the market value of slate in July and urges that there could be no default then, as the defendant was entitled to the whole of that month in which to- deliver the first installment. But there is another view. To quote from the charge, which is referred to as containing a statement of the respective claims: “The theory of the plaintiff is that after his contract was made, the price of slate materially advanced, and that the defendant put him off in every possible way in favor of his customers -who- were paying the higher price, and that the various mlatters now urged by way of defense are pretences.” In support of this theory he was entitled to show how the market price ranged during the whole period covered by the contract.
Judgment reversed and cause remanded.