Redfield, Ch. J
I. In regard to the construction of the contract, we incline to the opinion, that the provision for “ deducting the moisture,” upon the face of the contract, and according to the fair import of the terms used, must signify, that this is to be done only for the purpose of determining the amount to be paid. This seems to us to carry no implication of incongruity, such as was stated in the argument for the plaintiff.
The ore wps sold in the moist state. It was to be delivered in that state. The moisture could not be ascertained, until it was worked. The definite sum of the dry weight could not be known at the time of delivery. It is then more natural to conclude that the parties must have referred to the weight, at the time the title to the article passed. This seems to be the only construction whereby the parties could actunderstandingly. In any other view, the defendant would be necessitated to deliver more than the five hundred tons, as the amount could not be definitely known until the moisture was expelled in the course of manufacture, and the plaintiffs would not be bound to receive the excess, even after they had expelled the moisture.
But when the payment came to be determined, as that was to be made according to its productiveness of metal, there is nothing incongruous, as it seems to us, in deducting the moisture. And the form of expression used in the contract, “the moisture to be deducted, as usual, from the weight of the ores,” seems to imply that the ores had been before weighed, or were expected to be, else why speak of the “ weight,” and of deducting from the weight. This is certainly not very decisive, but it does indicate how the parties understood the thing was to be done, and that the ores were to be weighed in the moist state, If so, [98] it seems natural to conclude that the contract in defining the gross amount sold did refer to the weight when made, and in the state when sold.
If this, then, is the construction of the contract upon its face, the admission of testimony to show that such is the custom of the trade, could not be objected to by the plaintiff. But if the question of construction' were doubtful, the custom might well be proved, provided it were uniform and known, so as fairly to be presumed to have been in the mind of the parties, in entering into the contract. So that in either view, we cannot regard the course of the trial as presenting any error, of which the plaintiff can complain.
And in regard to the construction of contracts, affecting business as little known as the smelting of copper ore, and as much matter of science and study, where any doubt is claimed to exist, and the existence of any usage, or custom, is claimed affecting the question, it is highly useful and proper, and in accordance with the English practice, to take the opinion of the jury specially upon the existence, nature and extent of such usage, or custom, and place the special finding of the jury upon the record, that the Supreme Court may give it what effect it is entitled to.
II. The only remaining question, which seems to be much insisted upon by the plaintiffs’ counsel, is in regard to the rule of damages. For as the jury, under the charge of the court, have found no special damages, and there is no testimony in the case, tending to show that the price of copper had risen át the time of the alleged failure to deliver the ore as stipulated, then it would not seem to be important to spend time upon the question, whether the case was properly put to the jury in relation to the three hundred and twenty tons of ore having been received towards the five hundred tons stipulated to be delivered by the 1st of September, 1855, although not delivered until after that time. We see no reason to question the perfect regularity and soundness of the charge upon this portion of the case. But unless the rule of damages adopted in the County Court was erroneous, and can be put upon some other basis, we do not perceive that the othgr questions can be made of much iiqpor[99] tance. And the counsel seem so to regard it. The court might have said there was no evidence of any damage from the rise of ore in the market, and the other damages claimed were too remote to form any ground of recovery, and it would have brought the case to the same result which was reached by the charge, as it seems to me.
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Redfield, Ch. J
I. In regard to the construction of the contract, we incline to the opinion, that the provision for “ deducting the moisture,” upon the face of the contract, and according to the fair import of the terms used, must signify, that this is to be done only for the purpose of determining the amount to be paid. This seems to us to carry no implication of incongruity, such as was stated in the argument for the plaintiff.
The ore wps sold in the moist state. It was to be delivered in that state. The moisture could not be ascertained, until it was worked. The definite sum of the dry weight could not be known at the time of delivery. It is then more natural to conclude that the parties must have referred to the weight, at the time the title to the article passed. This seems to be the only construction whereby the parties could actunderstandingly. In any other view, the defendant would be necessitated to deliver more than the five hundred tons, as the amount could not be definitely known until the moisture was expelled in the course of manufacture, and the plaintiffs would not be bound to receive the excess, even after they had expelled the moisture.
But when the payment came to be determined, as that was to be made according to its productiveness of metal, there is nothing incongruous, as it seems to us, in deducting the moisture. And the form of expression used in the contract, “the moisture to be deducted, as usual, from the weight of the ores,” seems to imply that the ores had been before weighed, or were expected to be, else why speak of the “ weight,” and of deducting from the weight. This is certainly not very decisive, but it does indicate how the parties understood the thing was to be done, and that the ores were to be weighed in the moist state, If so, [98] it seems natural to conclude that the contract in defining the gross amount sold did refer to the weight when made, and in the state when sold.
If this, then, is the construction of the contract upon its face, the admission of testimony to show that such is the custom of the trade, could not be objected to by the plaintiff. But if the question of construction' were doubtful, the custom might well be proved, provided it were uniform and known, so as fairly to be presumed to have been in the mind of the parties, in entering into the contract. So that in either view, we cannot regard the course of the trial as presenting any error, of which the plaintiff can complain.
And in regard to the construction of contracts, affecting business as little known as the smelting of copper ore, and as much matter of science and study, where any doubt is claimed to exist, and the existence of any usage, or custom, is claimed affecting the question, it is highly useful and proper, and in accordance with the English practice, to take the opinion of the jury specially upon the existence, nature and extent of such usage, or custom, and place the special finding of the jury upon the record, that the Supreme Court may give it what effect it is entitled to.
II. The only remaining question, which seems to be much insisted upon by the plaintiffs’ counsel, is in regard to the rule of damages. For as the jury, under the charge of the court, have found no special damages, and there is no testimony in the case, tending to show that the price of copper had risen át the time of the alleged failure to deliver the ore as stipulated, then it would not seem to be important to spend time upon the question, whether the case was properly put to the jury in relation to the three hundred and twenty tons of ore having been received towards the five hundred tons stipulated to be delivered by the 1st of September, 1855, although not delivered until after that time. We see no reason to question the perfect regularity and soundness of the charge upon this portion of the case. But unless the rule of damages adopted in the County Court was erroneous, and can be put upon some other basis, we do not perceive that the othgr questions can be made of much iiqpor[99] tance. And the counsel seem so to regard it. The court might have said there was no evidence of any damage from the rise of ore in the market, and the other damages claimed were too remote to form any ground of recovery, and it would have brought the case to the same result which was reached by the charge, as it seems to me.
In regard to the rule of damages the court think the facts stated do not lay a sufficient basis for the recovery of special damages of the nature of those claimed in the present case. The only general damages which the vendee of personal property is entitled to recover for failure to deliver the articles, according 'to the contract, whether the price be paid or not, is the difference between the contract price and the market price of the article, at the stipulated time and place of delivery, when the price has advanced, together with the money paid towards the price. This contract, upon the facts stated in the bill of exceptions, is such a case. There is nothing in the case to show that the parties were aware that this article was important to the plaintiff', in carrying forward his business, beyond the mere fact of being supplied with ore to manufacture, or how much ore the defendant knew the plaintiff would require for the supply of his works, or what proportion he expected from this source, or how difficult it might be to supply the place of this ore in the market, or whether this ore could be worked profitably alone. And it does appear that the plaintiff's used other ores very extensively. Under these circumstances we are not prepared to say, that the special damages claimed in the action, were the natural or ordinary, and therefore the known and necessary, result of the failure to perform the contract, or that they were in any sense fairly within the contemplation of both parties at the time of entering into the contract, and so the natural result of the breach of the contract, as understood by the parties. And unless the damages resulting from the breach of a contract are of this character, it is now well settled they are too remote to be recovered. The case of Hadley v. Boxendale, 26 Eng. L. and Eq. 398, is of this character. And the English courts, in a later case, have applied the same rule to the case of a railway passenger going to perform important business and failing to arrive in time, in consequence [100] of the train not making the proper connection. It was held the party could only recover his extra expense in reaching his destination, and nothing for his loss of time and failure to meet his customers and extra expense in going by post to meet them at their places of business. This was held too remote to be regarded as in the mind of both parties at the time of entering into the contract. It was not, according to any facts known to the defendant, either the ordinary or natural result of the failure of the plaintiff to arrive in time. But it was in fact the inevitable result of the mode in which the plaintiff had before arranged to meet his customers, at a particular time and place, and so a loss which the party sustained inevitably, in consequence of the defendant’s failure to perform a binding contract upon adequate consideration. But the court held the damages not recoverable, because not in the contemplation of both parties, or the natural and ordinary result of the failure to perform the contract upon the basis of the facts known to the defendant, and upon which he assumed the obligation of the contract. This we regard as at present the settled rule of law, in regard to the allowance of special damages for the breach of contract. Hamlin v. Great Northern Railroad, 38 Eng. L. and Eq., 335.
It has been said, and may be true, that the defendants were aware of facts which made the loss and damages claimed inevitable to the plaintiff. But we can only say that we have to decide the case upon the facts found in the record. Baxter v. Thompson, 25 Vt. 505.
The damages which the plaintiffs are alleged to have sustained in manufacturing the ore delivered by the defendant and accepted by the plaintiffs after the expiration of time limited in the contract for the delivery, by reason of this ore not being suitable for manufacture by itself, and the damage to furnaces, and extra fuel, all come under the same rule already stated.
And it may also be said, in regard to much of this loss, -that the plaintiff must so copduet his business as to sustain the least damage practicable, pven if it were shown that the defendants were liable for the necessary portion of this damage by reason of knowing the process of the manufacture, and the object of procuring this Yermont pre, and its unfitness for manufacture, by [101] itself. The plaintiffs should either have procured other suitable ore to mix with this, or, if that was not practicable, they might perhaps sell the Vermont ore to some party having the means of putting it to a proper use, or in the market generally. They certainly could not in any event make the defendants liable for a loss which resulted from their own imprudence, and not for any loss of this remote character, unless they understood the particular purpose for which the ore was wanted, at the time of entering into the contract.
Judgment affirmed.