The opinion of the court was delivered by
Rogers, J.
This is an action of assumpsit, to recover liquidated damages for the non-performance of a written contract. It is not pretended by the defendant that the agreement was performed on his part, but he insists that performance was prevented by the acts of the plaintiff himself. If so, the defendant has a complete defence to the action, as it is unquestionable that one party may show by parol that the other party has waived or prevented performance of a contract, either written or parol. A party who dispenses with or prevents performance of a contract, cannot take advantage of the non-performance by the other: 4 United States Dig. 84 pl. 503, 11 Shep. 36; 7 United States Dig. p. 31, pl. 222; 4 id. 93, pl. 688. The defendant agreed, for a certain stipulated price, to sell and deliver to the plaintiff for the sum and at the time mentioned in the contract, fifteen hundred tons of good soft iron ore, to be the ore mined by Edmund Bullock, on the lands of Alexander Montgomery, George A. Frick, W. H. Magill, and Jacob Hibler, where said Bullock is now engaged in mining. It is very plain it was the intention of the parties that the defendant should have the liberty of selecting the ore of the quality described, from either the Montgomery or the Frick mine. His range was not con[136]*136fined to one or the other, hut if he took the ore from any ore-veins worked by Bullock, (provided it answered the description of good soft ore,) it was a full compliance with the stipulation in the contract. It was a matter of no consequence to the plaintiff from which the ore was taken, provided it was of the quality agreed upon; but it was of the first importance, as the event showed, that the defendant should not be confined, except within the prescribed limits. It was of serious detriment to him to be compelled to raise the ore from the Erick mines, as taking it from those mines was attended with an increased expense, arising from the fault of which the witnesses speak. Had there been no interference with the unquestionable right of the defendant to mine in the Montgomery vein, the contract may have been performed to the letter, by the delivering in due and proper time, the whole amount of ore plaintiff was entitled to receive. It must' be remarked, there was plenty of ore in Montgomery’s mine to fulfil the contract, and it is in proof that upwards of one thousand tons were taken from that mine, by the plaintiff himself, since the defendant ceased to deliver ore in pursuance of the agreement. The court was, therefore, right in ruling, that if the plaintiff interfered with the contract, and prevented defendant from delivering good soft ore, from the Montgomery vein, by his refusal to accept it from the mine, such refusal would discharge Donaldson and McQuhae from their obligation to deliver the ore according to the terms of the contract. This was the point on which the whole cause turned, and this point was properly referred to the jury. The jury have found, that the defendant tendered good soft iron ore, such as is described in the contract; that the plaintiff refused to receive it, declaring at the same time that he would not take any more from the Montgomery vein. His excuse was, it was too dirty, although the witness deposes it was as clean as it could be made by hands. Nor will it alter the case, that after the refusal, the defendant mined and delivered ore from the Erick vein, until he came to a fault, which, (in the apprehension of the miner, in whose experience the parties appear to have placed confidence,) could not be pierced without great expense. Under these circumstances, the defendant was at liberty to consider the contract at an end, inasmuch as plaintiff had himself interfered with the contract, by refusing, improperly, to receive ore from the Montgomery vein. The defendant was warranted in the belief that the plaintiff meant what he said; and if so, that it would be needless to tender ore from that mine, which had been before peremptorily refused. And this would seem to have been the understanding of both parties. We hear of no remonstrance on their part for the non-fulfilment of the contract. The matter is suffered to rest for three years, which of itself is strong evidence, from which the jury might presume a mutual abandonment: 7 Scott 395, Tindal, C. J. Bosanquet, J., says, contracts may be abandoned otherwise than [137]*137by words; the conduct of the parties and relative situations to each other are to.be considered: Cpltman, J. I think the jury might well conclude that by mutual consent the contract was treated as ended. The court was justified in instructing the jury that if they believed the ore was good soft ore, and Grove refused to receive it, and that in consequence of it Bullock quit mining, defendants would he released from their contract, and would not be bound to continue to offer ore to Grove. It is difficult to account on any hypothesis but the abandonment of the contract, for the sudden ceasing to deliver ore, after Grove’s declaration to Bullock, the great length of time that elapsed without one word of complaint, and the settling in the most friendly manner, a short time after, the price of pig-iron received in payment by defendants as cash for the ore delivered.
But it is strenuously contended, the court erred in instructing the jury that the testimony of Edmund Bullock is important in this cause, on the ground that he was the person mentioned in the agreement, to mine the ore on the land of Montgomery and others. I am free to confess that my first impressions were that the court had laid too much stress on the testimony of Bullock, but on further reflection, I have been inclined to change the opinion first formed. The defendant bound himself to deliver to the plaintiff fifteen hundred tons of good soft ore,, in good order, mined clean and free from dirt, slate, and other impurities, to be the ore mined by Edmund Bullock, on the lands of Alexander Montgomery, George A. Frick, William H. Magill, and Jacob Hibler, where said Bullock is now engaged in mining ; the said ore to be delivered at Chambers’s furnace, in good order, and mined clean and free from dirt, slate, and other impurities. That part of the agreement is certainly not very explicit, but I am inclined to adopt the reading of the defendant’s counsel. The parties would seem to have put great trust and confidence in Bullock, because, I suppose, he was an experienced miner, who had been engaged in the business for many years, and was, no doubt, by reputation at least, well known to both. He was, therefore, constituted in some measure the agent of both in it, as well as the organ of communication between the parties. Unless this was the case, it is difficult to understand why his name, was introduced into the agreement at all, as it would not be needed for purposes of designation, as the mines were sufficiently described by the appropriate names of the Montgomery and Frick mines. If this be so, the court was right in considering his testimony as important, for a refusal to receive the ore from him is the same as if the refusal had been made directly to the defendants themselves. Notice to them would be unnecessary. Indeed, proof of a refusal to him, who certainly was their man of business, would raise an almost uncontrollable presumption that it was communicated to his principals.
[138]*138The counsel for the plaintiff in error, contended that the court had no right to charge the jury that this was a hard ease.
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The opinion of the court was delivered by
Rogers, J.
This is an action of assumpsit, to recover liquidated damages for the non-performance of a written contract. It is not pretended by the defendant that the agreement was performed on his part, but he insists that performance was prevented by the acts of the plaintiff himself. If so, the defendant has a complete defence to the action, as it is unquestionable that one party may show by parol that the other party has waived or prevented performance of a contract, either written or parol. A party who dispenses with or prevents performance of a contract, cannot take advantage of the non-performance by the other: 4 United States Dig. 84 pl. 503, 11 Shep. 36; 7 United States Dig. p. 31, pl. 222; 4 id. 93, pl. 688. The defendant agreed, for a certain stipulated price, to sell and deliver to the plaintiff for the sum and at the time mentioned in the contract, fifteen hundred tons of good soft iron ore, to be the ore mined by Edmund Bullock, on the lands of Alexander Montgomery, George A. Frick, W. H. Magill, and Jacob Hibler, where said Bullock is now engaged in mining. It is very plain it was the intention of the parties that the defendant should have the liberty of selecting the ore of the quality described, from either the Montgomery or the Frick mine. His range was not con[136]*136fined to one or the other, hut if he took the ore from any ore-veins worked by Bullock, (provided it answered the description of good soft ore,) it was a full compliance with the stipulation in the contract. It was a matter of no consequence to the plaintiff from which the ore was taken, provided it was of the quality agreed upon; but it was of the first importance, as the event showed, that the defendant should not be confined, except within the prescribed limits. It was of serious detriment to him to be compelled to raise the ore from the Erick mines, as taking it from those mines was attended with an increased expense, arising from the fault of which the witnesses speak. Had there been no interference with the unquestionable right of the defendant to mine in the Montgomery vein, the contract may have been performed to the letter, by the delivering in due and proper time, the whole amount of ore plaintiff was entitled to receive. It must' be remarked, there was plenty of ore in Montgomery’s mine to fulfil the contract, and it is in proof that upwards of one thousand tons were taken from that mine, by the plaintiff himself, since the defendant ceased to deliver ore in pursuance of the agreement. The court was, therefore, right in ruling, that if the plaintiff interfered with the contract, and prevented defendant from delivering good soft ore, from the Montgomery vein, by his refusal to accept it from the mine, such refusal would discharge Donaldson and McQuhae from their obligation to deliver the ore according to the terms of the contract. This was the point on which the whole cause turned, and this point was properly referred to the jury. The jury have found, that the defendant tendered good soft iron ore, such as is described in the contract; that the plaintiff refused to receive it, declaring at the same time that he would not take any more from the Montgomery vein. His excuse was, it was too dirty, although the witness deposes it was as clean as it could be made by hands. Nor will it alter the case, that after the refusal, the defendant mined and delivered ore from the Erick vein, until he came to a fault, which, (in the apprehension of the miner, in whose experience the parties appear to have placed confidence,) could not be pierced without great expense. Under these circumstances, the defendant was at liberty to consider the contract at an end, inasmuch as plaintiff had himself interfered with the contract, by refusing, improperly, to receive ore from the Montgomery vein. The defendant was warranted in the belief that the plaintiff meant what he said; and if so, that it would be needless to tender ore from that mine, which had been before peremptorily refused. And this would seem to have been the understanding of both parties. We hear of no remonstrance on their part for the non-fulfilment of the contract. The matter is suffered to rest for three years, which of itself is strong evidence, from which the jury might presume a mutual abandonment: 7 Scott 395, Tindal, C. J. Bosanquet, J., says, contracts may be abandoned otherwise than [137]*137by words; the conduct of the parties and relative situations to each other are to.be considered: Cpltman, J. I think the jury might well conclude that by mutual consent the contract was treated as ended. The court was justified in instructing the jury that if they believed the ore was good soft ore, and Grove refused to receive it, and that in consequence of it Bullock quit mining, defendants would he released from their contract, and would not be bound to continue to offer ore to Grove. It is difficult to account on any hypothesis but the abandonment of the contract, for the sudden ceasing to deliver ore, after Grove’s declaration to Bullock, the great length of time that elapsed without one word of complaint, and the settling in the most friendly manner, a short time after, the price of pig-iron received in payment by defendants as cash for the ore delivered.
But it is strenuously contended, the court erred in instructing the jury that the testimony of Edmund Bullock is important in this cause, on the ground that he was the person mentioned in the agreement, to mine the ore on the land of Montgomery and others. I am free to confess that my first impressions were that the court had laid too much stress on the testimony of Bullock, but on further reflection, I have been inclined to change the opinion first formed. The defendant bound himself to deliver to the plaintiff fifteen hundred tons of good soft ore,, in good order, mined clean and free from dirt, slate, and other impurities, to be the ore mined by Edmund Bullock, on the lands of Alexander Montgomery, George A. Frick, William H. Magill, and Jacob Hibler, where said Bullock is now engaged in mining ; the said ore to be delivered at Chambers’s furnace, in good order, and mined clean and free from dirt, slate, and other impurities. That part of the agreement is certainly not very explicit, but I am inclined to adopt the reading of the defendant’s counsel. The parties would seem to have put great trust and confidence in Bullock, because, I suppose, he was an experienced miner, who had been engaged in the business for many years, and was, no doubt, by reputation at least, well known to both. He was, therefore, constituted in some measure the agent of both in it, as well as the organ of communication between the parties. Unless this was the case, it is difficult to understand why his name, was introduced into the agreement at all, as it would not be needed for purposes of designation, as the mines were sufficiently described by the appropriate names of the Montgomery and Frick mines. If this be so, the court was right in considering his testimony as important, for a refusal to receive the ore from him is the same as if the refusal had been made directly to the defendants themselves. Notice to them would be unnecessary. Indeed, proof of a refusal to him, who certainly was their man of business, would raise an almost uncontrollable presumption that it was communicated to his principals.
[138]*138The counsel for the plaintiff in error, contended that the court had no right to charge the jury that this was a hard ease. He justly says the agreement was fairly entered into by the parties, without surprise or imposition of any kind practised by either ; each party is equally stringently bound, and the stipulations are of such a nature, that either party could easily fulfil their part of the contract to the letter, if they had endeavoured in good faith to do so. If the court had, as the counsel supposes, charged the jury it was a hard case merely because the damages were^liquidated, it would be obnoxious to the objection made ; but I do not so understand the court. They say it was a hard case in view of all the circumstances, viz. that the miner had run foul of a fault and was stopped from getting out ore, in the Erick & Co. mine, on account of the slate-rock, which stopped his progress, and that Grove told Bullock he would not take any more from the Montgomery vein. To subject the defendant, as is clear, to heavy and exorbitant damages, under such a state of facts, would not only be hard, but oppressive. In this instruction I fail to perceive any injury of which the plaintiffs can justly complain.
In the argument, great stress was laid on the 'receipt of the 16th June, 1846, showing, as the plaintiff contends, that the contract was still in force when the receipt was given. The construction of the receipt, as far as it went, was favorable to the plaintiff in error, but the court properly referred it together with all the other testimony in the cause, to the jury. The court say the receipt speaks of ore to be delivered, and would imply ore which was to be delivered by Donaldson & McQuhae to the Groves, but there is other evidence in the cause, which the jury will also consider, and determine from the whole evidence whether the contract was or was not ended ; they will determine from what took place between the parties. Had the court undertaken to say that the receipt was of itself conclusive evidence that the contract was then a subsisting contract, it would have been erroneous, as undoubtedly it Aras their duty to refer that fact, with the attending circumstances, to the jury.
On a careful examination of the whole case, no error is perceived which would justify the court in reversing the judgment.
Judgment affirmed.