Robinson, J.,
delivered the opinion of the Court;.
. We cannot agree with the Court below as to the construction of the contract in question, and for a breach of which this suit was brought. The plaintiff agreed to buy of the defendant all the oyster shells made by him and H. F. Hemmingway, for the season beginning 1st ¡September, 1891, and ending May 1st, 1892. He agreed that boats shonldjbe kept at the docks of the defendant constantly, so as to keep the oyster houses clear of shells, and on these boats the shells were to he delivered until the 20th November, 1891. No shells were to he piled on the defendant’s premises until about that time, and all shells thus piled were to he taken away by the plaintiff before the 15th July, 1892. The plaintiff further agreed to pay on the first day of each and every successive week for the shells delivered during the previous week. That is to say, all shells delivered during the first week [336]*336in September were to be paid for on Monday of tlie following week, and so on for every week thereafter. Under this contract about seventy-five thousand bushels of shells were delivered between 1st September and 26th December, and on the 28th day of the latter month, the defendant notified the plaintiff that the contract was at an end, and refused to deliver to him any more shells. This suit is brought to recover damages for an alleged breach of the contract, and the defence is that the plaintiff failed to make the weekly /payments according to the terms of the contract; and failed also to keep boats at the defendant's docks, so as to clear the houses of the- shells. As the defendant in his testimony admits that he did not declare the contract at an end because of the failure of the plaintiff to keep boats at the defendant's docks, it is only necessary to consider whether his failure to make the weekly payment for the shells delivered justified the defendant in refusing to deliver to him any more shells. And .this depends upon whether the weekly payments by the plaintiff are to be considered an essential part of the contract. And in considering this question it must be borne in mind, that the contract contemplated the sale of at least two hundred thousand bushels of shells, to be delivered daily during a period of eight months, from the 1st of September to the 1st May following; and further, that the contract provided in express terms for the payment of each week's delivery on the first day of the next week. We cannot suppose for a moment that the defendant meant to give an indefinite credit to the plaintiff, nor even a credit until all the shells were delivered or taken away. On the contrary, looking to the terms of the contract, it seems to us it was the intention of the parties that the weekly payments by the plaintiff should constitute an essential part of the contract. In other words, it was of the essence of the contract. In Withers vs Reynolds, 2 [337]*337Barn. & Adol., 882, where the defendant agreed to supply the plaintiff with straw to he delivered on plaintiff’s premises, at the rate of three loads in a fortnight, during a specified time, and the plaintiff agreed to pay thirty shillings for each load so delivered, it was held that according to the true construction of the contract, each load was to be paid for on delivery, and that on the plaintiff’s refusal to pay for the straw as delivered, the defendant was not bound to deliver any more. And in Curtis vs. Gibney, 59 Md., 131, treating the contract as an agreement on the part of the defendant to consign 10,000 bushels of barley to the plaintiffs, the shipments to be made at different times, and payment to be made after receipt of each shipment, Bamol, C. J., said: “It is equally clear that, upon his failure to remit to the appellant the proceeds in his hands arising from the sale of the barley, according to the terms .of his contract with the appellant, the latter was not bound to make further consignments to him.” If there be, however, any doubt as to the intention of the parties from the terms of the contract itself, their subsequent acts and declarations show beyond question that the weekly payments to be made by the plaintiff constituted an essential part of the contract now before us. So early as October 12th, we find the weekly bill sent by the defendant to the plaintiff endorsed, “Please send money for these bills promptly. ” Again on the bill of December 7th, we find the following endorsement: “Terms cash every Monday.” And in his letter dated November 27th, the defendant says: “Your contract reads that you are to pay us weekly, and you are no doubt aware of the fact that you have been violating that part of it.” And in this letter he notifies the plaintiff that unless the weekly bills already due are paid at once he will refuse to allow him to take away any more shells. Again in his letter of 7th December, he ' [338]*338insists that the weekly bills shall be “paid promptly every week as per agreement. ’’ And finally, by letter of December 9th, he notifies the plaintiff that by reason of his failure to pay the bills weekly according to agreement, the contract between them is at an end. No objection whatever was made by the plaintiff to the defendant’s construction of the contract, nor as to his right to annul it upon plaintiff’s failure to make the weekly payments. On the contrary, upon the receipt of the letter of the 7th December, the plaintiff paid at once all the bills due at that time, and upon their payment the defendant continued to deliver the shells. On the 28th of December however having failed to pay the weekly bills for the 14th and 21st of December, the defendant sold the shells to another person at the same price. In the latter part of that day the plaintiff tendered to the defendant his cheque for $112.47, being the amount due for bills of December 14th and 21st; but having sold the shells to another person before the tender was made, he refused to accept the same. It is clear therefore that .the weekly payments were meant and understood by the parties to be an essential part of the contract, and the plaintiff having failed time and again to make these payments according to the tertns of the contract, the defendant had the right to put an end to the contract, and to refuse to deliver any more shells under it to the plaintiff. And this being so, there was error in granting the plaintiff’s second instruction. There is evidence, it is true, tending to show that the defendant had condoned or waived the default on the part of the plaintiff, and this question was properly submitted to the jury by the plaintiff’s first instruction.
As to the rule in regard to the measure of damages, there cannot be, it seems to us, any difficulty in regard to this question. In an action on a contract of this kind, the damage is the actual loss sustained by the plaintiff [339]*339from the breach of the contract; and so far as money « can do it, he is to be placed in the same situation as if the contract had been performed. And in estimating this loss the rule ordinarily is the difference between the contract price and the market price at the time agreed upon for the delivery of the goods and chattels sold. Now in this case the defendant bad delivered about seventy-five thousand bushels of shells; and if there was a breach of contract on his part in refusing to deliver any more shells, then the plaintiff was entitled to recover as damages the difference between the contract price to be paid for the balance of the shells and the market price at the time or times when the shells were to be delivered. Pinckney vs. Dambmann Bros. & Co., 72 Md., 184;
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Robinson, J.,
delivered the opinion of the Court;.
. We cannot agree with the Court below as to the construction of the contract in question, and for a breach of which this suit was brought. The plaintiff agreed to buy of the defendant all the oyster shells made by him and H. F. Hemmingway, for the season beginning 1st ¡September, 1891, and ending May 1st, 1892. He agreed that boats shonldjbe kept at the docks of the defendant constantly, so as to keep the oyster houses clear of shells, and on these boats the shells were to he delivered until the 20th November, 1891. No shells were to he piled on the defendant’s premises until about that time, and all shells thus piled were to he taken away by the plaintiff before the 15th July, 1892. The plaintiff further agreed to pay on the first day of each and every successive week for the shells delivered during the previous week. That is to say, all shells delivered during the first week [336]*336in September were to be paid for on Monday of tlie following week, and so on for every week thereafter. Under this contract about seventy-five thousand bushels of shells were delivered between 1st September and 26th December, and on the 28th day of the latter month, the defendant notified the plaintiff that the contract was at an end, and refused to deliver to him any more shells. This suit is brought to recover damages for an alleged breach of the contract, and the defence is that the plaintiff failed to make the weekly /payments according to the terms of the contract; and failed also to keep boats at the defendant's docks, so as to clear the houses of the- shells. As the defendant in his testimony admits that he did not declare the contract at an end because of the failure of the plaintiff to keep boats at the defendant's docks, it is only necessary to consider whether his failure to make the weekly payment for the shells delivered justified the defendant in refusing to deliver to him any more shells. And .this depends upon whether the weekly payments by the plaintiff are to be considered an essential part of the contract. And in considering this question it must be borne in mind, that the contract contemplated the sale of at least two hundred thousand bushels of shells, to be delivered daily during a period of eight months, from the 1st of September to the 1st May following; and further, that the contract provided in express terms for the payment of each week's delivery on the first day of the next week. We cannot suppose for a moment that the defendant meant to give an indefinite credit to the plaintiff, nor even a credit until all the shells were delivered or taken away. On the contrary, looking to the terms of the contract, it seems to us it was the intention of the parties that the weekly payments by the plaintiff should constitute an essential part of the contract. In other words, it was of the essence of the contract. In Withers vs Reynolds, 2 [337]*337Barn. & Adol., 882, where the defendant agreed to supply the plaintiff with straw to he delivered on plaintiff’s premises, at the rate of three loads in a fortnight, during a specified time, and the plaintiff agreed to pay thirty shillings for each load so delivered, it was held that according to the true construction of the contract, each load was to be paid for on delivery, and that on the plaintiff’s refusal to pay for the straw as delivered, the defendant was not bound to deliver any more. And in Curtis vs. Gibney, 59 Md., 131, treating the contract as an agreement on the part of the defendant to consign 10,000 bushels of barley to the plaintiffs, the shipments to be made at different times, and payment to be made after receipt of each shipment, Bamol, C. J., said: “It is equally clear that, upon his failure to remit to the appellant the proceeds in his hands arising from the sale of the barley, according to the terms .of his contract with the appellant, the latter was not bound to make further consignments to him.” If there be, however, any doubt as to the intention of the parties from the terms of the contract itself, their subsequent acts and declarations show beyond question that the weekly payments to be made by the plaintiff constituted an essential part of the contract now before us. So early as October 12th, we find the weekly bill sent by the defendant to the plaintiff endorsed, “Please send money for these bills promptly. ” Again on the bill of December 7th, we find the following endorsement: “Terms cash every Monday.” And in his letter dated November 27th, the defendant says: “Your contract reads that you are to pay us weekly, and you are no doubt aware of the fact that you have been violating that part of it.” And in this letter he notifies the plaintiff that unless the weekly bills already due are paid at once he will refuse to allow him to take away any more shells. Again in his letter of 7th December, he ' [338]*338insists that the weekly bills shall be “paid promptly every week as per agreement. ’’ And finally, by letter of December 9th, he notifies the plaintiff that by reason of his failure to pay the bills weekly according to agreement, the contract between them is at an end. No objection whatever was made by the plaintiff to the defendant’s construction of the contract, nor as to his right to annul it upon plaintiff’s failure to make the weekly payments. On the contrary, upon the receipt of the letter of the 7th December, the plaintiff paid at once all the bills due at that time, and upon their payment the defendant continued to deliver the shells. On the 28th of December however having failed to pay the weekly bills for the 14th and 21st of December, the defendant sold the shells to another person at the same price. In the latter part of that day the plaintiff tendered to the defendant his cheque for $112.47, being the amount due for bills of December 14th and 21st; but having sold the shells to another person before the tender was made, he refused to accept the same. It is clear therefore that .the weekly payments were meant and understood by the parties to be an essential part of the contract, and the plaintiff having failed time and again to make these payments according to the tertns of the contract, the defendant had the right to put an end to the contract, and to refuse to deliver any more shells under it to the plaintiff. And this being so, there was error in granting the plaintiff’s second instruction. There is evidence, it is true, tending to show that the defendant had condoned or waived the default on the part of the plaintiff, and this question was properly submitted to the jury by the plaintiff’s first instruction.
As to the rule in regard to the measure of damages, there cannot be, it seems to us, any difficulty in regard to this question. In an action on a contract of this kind, the damage is the actual loss sustained by the plaintiff [339]*339from the breach of the contract; and so far as money « can do it, he is to be placed in the same situation as if the contract had been performed. And in estimating this loss the rule ordinarily is the difference between the contract price and the market price at the time agreed upon for the delivery of the goods and chattels sold. Now in this case the defendant bad delivered about seventy-five thousand bushels of shells; and if there was a breach of contract on his part in refusing to deliver any more shells, then the plaintiff was entitled to recover as damages the difference between the contract price to be paid for the balance of the shells and the market price at the time or times when the shells were to be delivered. Pinckney vs. Dambmann Bros. & Co., 72 Md., 184; Benjamin on Sales, sec. 882.
And the Court in'granting the plaintiff's fifth prayer, as we understand it, so instructed the jury. At the same time we deem it proper to say that the prayer is encumbered with a good deal of unnecessary verbiage, a matter always to be avoided in the trial of all causes.
As to the several instructions offered by the defendant, these were all properly rejected. The first and third were properly rejected, because if it be assumed that there had been a breach of the contract by the plaintiff himself, these instructions do not submit to the jury to find whether the breach or breaches by him had been condoned or waived by the defendant.
The second instruction presents the question whether the tender made by the plaintiff on the 28th of December of his cheque for $112.47 in payment of the weekly bills for the 14th and 21st December, constituted a lawful tender. He had been in the habit of making payment for the weekly deliveries by cheques, and when the cheque in question was tendered to the defendant he refused to accept it, not because the tender of payment was made by cheque instead of lawful money, but because [340]*340he had declared the contract to be at an end, and had in fact sold the balance of the shells to be made by him during the oyster season to another person. And, such being the case,we take it to be well settled that, where a tender is made, whether it be by ordinary bank notes, or by a cheque on a bank, and the tender is refused, not because of the character or quality of the tender itself, but on other grounds, the tender thus made and refused will be considered in law a lawful tender. And for the reason, that all objection to the character of the tender will be considered as having been waived; and for the further reason, that, if objection had been made on the ground that the tender was not made in lawful money, the party would have had the opportunity of getting the money and of making a good and valid tender. Young vs. Harris, 2 Crompton & Jarvis, 15.
(Decided 16th March, 1893.)
The defendant’s fourth prayer was not pressed in argument. If there was a breach of the contract in refusing-to deliver the shells to the plaintiff, the latter was under no obligation to go into the market and purchase other shells, even though he might have purchased them at the same or less than the contract price. If there was no difference in fact between the contract price and the market price at the time the shells were to be delivered, the plaintiff, it is true, sustained no actual loss from the breach of the contract. But at the same time, even though he failed to prove any bona fide substantial loss or damage, he was still entitled to nominal damages. Whenever a contract is broken, the law presumes that some damage has been sustained, and if the plaintiff should fail to prove any actual loss or injury, he is still entitled to a verdict for nominal damages. Feize vs. Thompson, 1 Taunt., 121; Embrey vs. Owen, 6 Fxch., 353.
Judgment reversed, and new trial aiuarded.