
    Lowry & Rule v. J. A. Barelli & Co. et al.
    
    1. The defendants agreed to sell and deliver to the plaintiffs at New Orleans, at any time between the middle of October, 1851, and the first of January then“nextfollowing,, “ various marble blocks, of good merchantable quality, to the extent of twenty-five hundred cubic feet, a little more or less; no block to measure less thau five feet in length, and one or two blocks to measure near twelve feet in length, or more. The marble to be measured-by either party, or together, and, in case of non-agreement, by a third person, to he appointed by the parties; and on measurement and account being made up,” the plaintiffs were to pay the defendants “ two dollars and twelve and a half cents for each and every foot so delivered”. Seld, that upon the failure of the defendants to measure the marble and make up an account, the plaintiffs were not hound to pay or tender payment therefor, before bringing suit for the defendants’ breach.
    
      2. In guoh contract it was stipulated that “ for non-compliance of this contract by either party, the penalty shall be as follows :.....And should the parties of the second part [defendants] fail to deliver within the specified time the quantity of marble above mentioned, the parties of the first [plaintiffs] shall be at liberty to buy the same quantity of marble at the market price, aud charge the difference, if any, to the parties of the second part, provided always that the difference of the marble so purchased shall not exceed thirty-seven and a half cents per cubic foot of the price fixed by this agreement, and that the terms of purchase be cash.” Held, upon the further fact being found, that such a lot of marble could not have been purchased in the market at New Orleans at the expiration of the time for delivery, it was not necessary for the plaintiffs to show, in order to recover •for the failure of defendants to deliver, that they had purchased a like quantity of marble in the market at a rate exceeding the contract price, or that they had made efforts to do so.
    2. The maxim, exjpressio uniu-s est exolusio alterius, does not apply, when upon the face of the whole instrument a different intention can be ascertained.
    Reserved, on special verdict, in the district court of Hamilton county.
    This is an action of assumpsit, originally brought in the ■court of common pleas of Hamilton county, to recover damages for the breach of a written contract of which the following is a copy :
    “ Agreement entered into at New Orleans, La., on the 2d ■day of January, eighteen hundred and fifty one, between Messrs. Lowry & Rule, of Ohio, and Barelli & Co. of this city, to the following effect:
    “ That the parties of the first part, Messrs. Lowry & Rule, do hereby bind themselves to receive from Barelli & Co. at any time between the middle of October next, and the 1st of January, 1852, various Italian marble blocks, of good merchantable quality, at the landing of this city, or at any other point of this city that said Barelli & Co. may designate, within the period stipulated, to the extent of twenty-five hundred cubic feet, a little more or less. Said Barelli & Co. agreeing that no block shall measure less than five feet in length and that one or two shall measure near twelve feet in length, or more, and that the blocks of said length shall measure at least eighteen or twenty inches in depth, said marble to be measured by either of the contracting parties, or together, and in case of their non-agreeing they shall appoint a person to that effect, and paid by both parties, one-half each, and on the measurement and account being made up, the parties of the first part shall pay to the parties of the second part, two dollars and twelve and a half cents for each and every one cubic foot of marble so delivered, in cash, in good current money of the United States, with the privilege that the parties of the first part shall, if they desire, pay (|) one-third part of the purchase money by a satisfactory acceptance on a satisfactory house in this city, at three months from the twentieth day of Messrs. Barelli & Co. having given notice to parties of the first part, of their being ready to deliver the marble contracted for by this document, adding of course interest to the same at the rate of six per cent, per annum, when so settled for, to be at parties of the first part’s risk and expense. It is here fully understood, that should Barelli & Co. be required to move said marble on or before the parties of the first part can be here to receive it, and that fifteen days have elapsed since the first notice has been given by Barelli & Co. to Messrs. Lowry & Rule, of Cincinnati, which notice shall be by letter mailed in this post office, and if possible by telegraph, then and in that case the carting of said marble shall be at the expense and risk of the parties of the first part,, and can only be at the expense of the parties of the second part, if removed before the fifteen days before expressed.
    “ For the non-compliance of this contract by either parties, the penalty shall be as follows : If the parties of the first part are not themselves, or agents, on the spot twenty days-after the stipulated notice be given, then the parties of the-second part shall be at liberty to sell said marble just as if consigned to them, and claim of said first parties the difference between the.net amount that the marble sold at, and what they bound themselves to pay for it, say $2£ per cubic foot, provided, always, that said difference shall never exceed thirty-seven and one-half cents per foot, which differ» ence shall be paid down cash at once, without'any difficulty. And should the parties of the second part fail to deliver within the specified time the quantity of marble above mentioned, the parties of the first part shall be at liberty to buy the same quantity of marble at the market price, and charge the difference, if any, to the parties of the second part, pro* vided, always, that the difference of the marble so purchased shall not exceed thirty-seven and one-half cents per cubic foot of the price fixed by this agreement, and that the terms of purchase be for cash.
    “ And for the faithful performance of the foregoing, we do hereby sign, seal and deliver this duplicate, date and place as above.
    “ Theor. Delgado. “ Barelli & Co.
    “ C. O. Haller. “Lowry & Rule.
    The breach assigned was the non-delivery of the marble. Plea, the general issue.
    At the January term, 1854, the cause was tried by a jury,- and verdict and judgment for the plaintiffs. An appeal was taken to the district court, and at the April term, 1862, of said court, the cause was submitted to a jury, which returned the following verdict:
    “We, the jury, find as follows :
    “ 1. The contract sued upon was duly executed by the parties.
    “ 2. The plaintiffs were ready and willing to perform the contract, and duly demanded performance on the part of the defendants.
    “3. The defendants refused to perform the contract on their part.
    “4. The plaintffs did not purchase, nor attempt to purchase, marble corresponding to that described in the contract before bringing suit.
    “ 5. Such a lot of marble could not have been then purchased in New Orleans.
    “ 6. The difference between the market price and the contract price on the day of breach was greater than thirty-seven and a-half cents per foot.
    “ 7. The damages of the plaintiffs amount to $1,516.62;
    
      “ We therefore find the issue joined for the plaintiffs, and assess their damages at $1,516.62.”
    During the progress of the trial, the defendants asked the court to instruct the jury, “that the plaintiffs, before they could recover, must satisfy the jury that they tendered the whole contract price for the marble mentioned in the contract, for full twenty-five hundred cubic feet, at the rate named in the contract;” which instruction the court refused to give, and the defendants excepted.
    The court was also asked to instruct the jury, “ that the plaintiffs could not recover damages as and for the failure of the defendants to deliver twenty-five hundred cubic feet of marble ;” which was refused and defendants excepted.
    The defendants further asked the court to instruct the jury, “ that before the plaintiffs can recover, they must show to the satisfaction of the jury that they made all proper efforts to purchase the same quantity of marble, without success ;” which instruction the court reserved for further consideration upon the coming in of the special verdict of the jury, which the jury were instructed to bring in.
    The bill of exceptions also contains all the testimony offered in the case.
    Upon the return of the verdict, the defendants moved for a new trial, “ because the court refused to charge as the defendants requested, and because the court erred in the charge as given, and because the verdict was contrary to the law and the evidence.”
    The plaintiffs also moved the court for judgment upon the verdict.
    Pending these motions the cause was reserved for decision in this court.
    
      Thomas G. Mitchell for plaintiffs :
    I do not suppose that any stress will be laid upon the refusal of the district court, to give the charges to the jury, requested by the defendants. The addition in the agreement, 
      to the quantity of marble contracted for, of the words “ a little more or less” certainly did not have the effect to change the basis of the plaintiffs’ recovery. And it will not be seriously claimed, in this court, that a technical tender of the contract price of the marble was necessary, when the plaintiffs were ready and willing to perform the contract on ■their part, and demanded the performance of it by the defendants, which they unqualifiedly refused.
    The question which has occasioned the only difficulty in the case, arises upon the stipulation in the contract, that in the event of a breach of it by one of the parties, the other ■should have the right to buy or to sell, as the case might be, the quantity of marble contracted for, and claim the difference between the amount of such purchase or sale, and '.he contract price, provided such difference did not exceed specified sum.
    No such lot of marble could, at the date of the breach of the contract, have been purchased in the city of New Orleans ; and as the law never requires any one to do an utterly vain thing, no importance can be attached to the fact, that the plaintiffs did not “ attempt to purchase” nor prove that they made “ all proper efforts” to purchase such a lot of marble. No attempt would have been successful, and no ■proof could be required of an effort to do an impossible thing. And the only question to be considered, therefore, is the naked one, whether the absence from New Orleans, at the date of the breach of the contract, of such marble as was contracted for, of itself, precluded the plaintiffs from recovering damages for the defendants’ default.
    The plain meaning of the contract, as it seems to me, is, that the right to buy or to sell, as the case might require, specially provided for, was simply one means of ascertaining the market price of such marble on the day of default, by no means subversive of the ordinary rule of law as to the recovery of damages. And if so, then clearly there was no necessity for the plaintiffs to attempt to measure the damages in that way, when such an attempt would have been utterly futile.
    
      The idea that in no event could there be a recovery, without an actual purchase of such marble, is clearly an afterthought.
    
      R. M. Qorwine and Quinton Oorwine for defendants :
    The contract is peculiar, both in its structure and its provisions. It is a rule of construction unto itself, limiting the damages and pointing out the mode of ascertaining whether there have been any damages sustained.
    1. A tender was necessary, as a condition precedent, to put the defendants in default. And the.tender must be of enough to cover the full amount for 2,500 cubic feet of marble, “ a little more or less.”
    
    It is not a good tender to merely say, “ I am ready,” &C. There must be an actual bona fide offer. Thomas v. Evans, 10 East, 101; Dickson v. Shee, 4 Esp. 68; Kraus v. Arnold, 7 Moore, 59 ; 3, Car. & P. 342 ; Frank v. Brooks, 1 Scott, 70 ; Brown v. Gilmore, 8 Greenl. 107.
    An offer to hand over that that is not actual, will not do. 45 N. H. 440 ; 7 Ib. 535 ; 15 Wendell, 637.
    2. The plaintiffs cannot recover damages for the failure of defendants to deliver 2,500 cubic feet of marble, while the contract was for 2,500 feet, “ a little more or less.” Thus the amount was necessarily uncertain, and the defendants' liability as uncertain.
    3. The sum of 37 ¿ cts. per foot, is in the nature of a limitation of damages, and not as actual or liquidated damages, and is the utmost the parties can recover. In this sense it should have been averred in the declaration, as well the nature of as the actual special damages they sustained. In the absence of such averment, plaintiffs cannot recover. 1 Chitty’s Pl. 338, 9, 395 ; Ryerson v. Marseillis, 1 Haw. 450; 2 Greenl. Ev. sec. 254; Dickinson v. Boyle, 17 Pick. 78.
    4. Unless Lowry & Rule purchased, or, at all events, made a reasonable effort to purchase, the same quantity of marble, they were not in a condition to claim damages. The measure of damages, and the mode in which such damages may arise, are pointed out and agreed upon, and must be strictly followed by the party who will default the other. If Lowry & Rule wanted this marble for a special purpose, and Barelli failed to come to time, they were at liberty to go into the market and purchase it and charge the difference between the contract price and the market or purchasing price, not to exceed 37|-cents per foot.. *But until Lowry & Rule did this thing, or, at most, made an honest effort, showing that they acted in good faith, there was and could be no default on the part of Barelli. 1 Baldwin, 331.
    Indeed, it is a nice question whether this stipulation does not contemplate, if it does not require, that there should be an actual purchase before there can be any damages claimed. The language is “ shall be at liberty to buy the same quantity of marble at the market price and charge the difference, if any,” &c. The parties did not seem to contemplate that there were to be damages unless there was a purchase.
   McIlvaine, J.

Having examined the testimony in this case, we are satisfied that there was sufficient evidence before the jury to authorize the findings of fact returned in the special verdict.

There remains, therefore, only two questions necessary to be determined :

1st. In order to entitle the plaintiffs to a judgment on the verdict, was it necessry for them to prove a tender to the defendants of the contract price of the marble ?

2d. Was it necessary under the contract, in .order to default the defendants, to show that the plaintiffs had bought, or made reasonable efforts to buy, in the market a like quantity of marble ?

We think that the performance by the plaintiffs of their promise to pay for the marble was a condition subsequent to the measurement of the marble and making an account thereof by defendants, and that no tender of the purchase money was necessary, in order to put the defendants in default for not delivering the marble.

That this is so, is manifést from the following provisions of the contract: The exact quantity of marble to be delivered was not certain and fixed. The contract gave an option to the defendants, as to quantity, for the purpose, no doubt, of accommodating the amount to the sizes of the blocks. Twenty-five hundred cubic feet, a little more or less, in blocks not less than five feet in length, were to be delivered. The provision of the contract is, that “ on measurement and account being made up, the parties of the first part shall pay to the parties of the second part,” &c. It was impossible to ascertain the amount of money to be paid until measurement of quantity was made.

It is, no doubt, competent for parties to limit, by express stipulations, the amount of damages to be ■ recovered in the event of a breach of their contract; or to make the right to recover at all to depend upon a particular event; or they may agree that damages shall not be recovered in any event for a violation of the contract: thus making, what would otherwise be a contract binding in law, a mere option on the part of the promissor to do or not to do as he may choose.

In our opinion the contract between the parties in this case was of the first, and not of the second or third classes named. Taking it all together, we believe the parties intended to secure the performance on each side, by fixing the liability for non-performance at what they supposed would be a reasonable compensation to the injured party, in case of default by the other, in not receiving or not delivering the marble.

It cannot be doubted, that the parties intended to bind each other by this contract to the purchase and sale, upon the terms named therein. For the breach of every contract the law implies damages, and to escape the consequence of this rule of law, the party in default should be able to show, clearly, that damages had been waived. In this contract no waiver, or exemption from damages upon the state of facts found in the special verdict, is expressed; nor can it be inferred, except upon the principle that expressio unius est exclusio alterius. This maxim, however, should not be applied in a case where, by fair construction of the whole instrument, a different intention can be ascertained.

Now, to say the least, it was intended and contemplated by the parties in the making of this contract, that in case of the defendants’ default, such marble would be in the market at New Orleans, and within the power of the plaintiffs to purchase. Clearly the New Orleans market was intended by the contracting parties, and the special verdict finds that no such marble could have been purchased in that market, at the time of the defendants’ default. Can it be said, that, because the parties named a particular mode in which the damages for a breach of this contract might be ascertained, and that mode became impossible by reason of circumstances not contemplated by them, therefore, no other mode can be adopted ; and the defendants can stand justified in law for a plain violation of their contract; and that' such was the intention of the parties in making the contract ? We think not.

Whatever might have been the law of this case, had there-been such marble in the market, at the time of defendants’ default, we are of opinion that the plaintiffs, under the state-of facts found in the special verdict, were excused not only from making a purchase of a like quantity of marble in the market, but also from any vain and fruitless effort to do so.

Motion of defendants to set aside verdict and for a new trial overruled, and judgment rendered on the verdict in-favor of plaintiffs.

Welch C. J., and White, Day and West, JJ., concurred.  