
    Steel Works v. Dewey.
    1. D. agreed in writing to deliver to S. a certain quantity of iron ore, -at a specified price per ton, “ on the landing at C.,” and gave him an order therefor, and S. brought an action on the agreement, alleging that D. refused to deliver the ore. Held, it is competent to show that by the settled, uniform usage at 0., well known to the parties when they com tracted, one holding such order is entitled to have the ore taken from the pile on the landing and placed in his boats; that ore is not permitted to be removed, nor is it practicable to remove it, in any other manner; and that the ore is weighed when it is carried in the boats to its destination, and then payment therefor is made.
    2 In an action for refusing to deliver ore, prosecuted on an agreement in the same form, it appeared that the seller resided at another place, where he refused to deliver such order, and informed the purchaser that he would not comply with the agreement,—Held, that it was not necessary for the purchaser, after such refusal by the seller, to take boats to C. for the ore, or demand the ore at 0., the purchaser being able and willing to comply with such agreement as it existed in view of the usage.
    Error to the Superior Court of Cincinnati.
    On September 17, 1873, Dewey, Vance & Co. brought suit in the superior court of Cincinnati, against Swift’s Iron and Steel Works, a corporation, on the following instrument:
    “ Alex. Swift, Pres. Office of Swift’s Iron and Steel
    Geo. E. Clymer, Vice Pres. Works, Ño. 26 W. Third St.,
    Edwin Swift, Treas. Masonic Temple.
    “ Cincinnati, October 1, 1872.
    
      “ A. Swift, Esq., Cin&mnati, Ohio:
    
    
      “ Dear Sir :—We propose to deliver to you on the landing at Carondelet 1,000 to 1,200 tons Iron Mountain ore, near St. Louis, you to take it away during 1872, paying for the same $5.50 per ton, cash—it being understood that you are to deliver to us next spring at the same place the same quantity of ore at the same price.
    “ Yours truly,
    (Signed,) “ Dewey, Vance & Co.
    
      “ Accepted:
    (Signed,) “ Alex. Swift, Pres’t.”
    
    The plaintiffs sought in the action to recover damages from the corporation for its refusal to deliver to them ore in the spring of 1873.
    The corporation admits the non-delivery of the ore in the spring of 1873, and its failure to draw an order for ore on the Iron Mountain Company, but denies the plaintiffs are entitled to recover, because the contract is entire, and they failed to deliver to the corporation ore in the fall of 1872, in pursuance of the contract; and for the further reasons that the plaintiffs did not demand the ore to be delivered in 1873 at the proper time or place, did not have any boat at Carondelet landing to receive it, and were not ready and willing to pay for such ore; and, by way of counter-claim, the corporation asked damages for such failure to deliver ore in 1872. To this counter-claim there was a reply.
    A verdict was rendered in favor of Dewey, Vance & Co., for $3,090; and the cause having been reserved to the general term on a motion for anew trial, the motion was overruled, and judgment was rendered on the verdict. On leave, this petition in error was filed to reverse the judgment.
    The material facts, either admitted or shown by the evidence, are as follows: During the year 1873, and during many preceding years, Dewey, Vance & Co. was a firm engaged in the manufacture of iron at Wheeling; Swift’s Iron and Steel Works was a corporation engaged in the manufacture of iron and steel at Cincinnati and Newport; and the Iron Mountain Company was a corporation-at St. Louis, having a monopoly of the kind of iron ore mentioned in the above agreement.
    The Carondelet landing inferred to in the contract is owned by the Iron Mountain Company, is situated on the Mississippi river within the corporate limits of St. Louis, and the company owns all the ore placed thereon. The ore is kept in a pile, from which the boats of the company’s customers are loaded. No particular part of the ore is set apart to any customer*, biit the loading is done from that part of the pile nearest the boats. The ore is not weighed at the landing, but the weight is estimated by the displacement of the boats when loaded, a memorandum of the weight thus approximated is made, and that governs in the settlement and payment, if the ore or any part of it is lost in transit; but if none of it is thus lost, the actual weight is ascertained when the ore arrives at its destination, and payment is then made.
    The Iron Mountain Company, during the fall or early part of winter in each year, sends a circular letter to each of its customers, fixing the price of ore for the ensuing year. The price so fixed remains unchanged during such year. In the fall of 1871, the company fixed the price of ore for 1872, “ on the landing at Carondelet,” at $5.50 per ton. Ore ordered in pursuance of such circular must be taken away during such succeeding year, as the contract is canceled at the end of such year, as to any ore not removed. The company never permits ore to be taken from the landing in any other manner or upon any other terms than as above stated; but where a customer who has agreed to take ore gives orders to others for part or all the ore he contracted for, the company fills such orders, but still looks to the customer for payment.
    This mode of dealing with respect to Iron Mountain ore at Carondelet landing, has been for many years uniform, invariable and well known, and the parties to this suit were familiar with the usage, when the agreement was made, and contracted with reference to such usage.
    As early as May, 1872, Swift’s Iron and Steel Works had exhausted all the ore due to it for that year, under its contract with the Iron Mountain Company made the preceding autumn. In that month and again in August, Mr. Swift applied to the company for more ore, but the company refused, as it had contracted with others for all it could deliver during 1872. In that condition of things, Mr. Swift applied to Dewey, Yanee & Co. That firm had contracted with the Iron Mountain Company for more ore than it could use during 1872, and knowing that the contract would be canceled on January 1, 1873, as to any ore not taken away in 1872, it was willing to let Swift’s Iron and Steel Works have ore, provided it could obtain, in the spring of 1873, an equal quantity of ore at the price prevailing in 1872, that is, at $5.50 per ton, for it was then manifest that the price for 1873 would be much higher ; and in fact, in the fall of 1872 the Iron Mountain Company fixed the price of ore for 1873 at $10 per ton. Under these circumstances, the contract of October 1, 1872, was made at Cincinnati, and for the reasons stated, it was advantageous to both parties.
    An order was at the same time delivered to Mr. Swift in the following form:
    
      “ Alex. Swift, Pres. Office of Swift’s Iron and Steel
    Geo. E. Clymer, Yiee Pres. Works, No. 26 W. Third St., Edwin Swift, Treas. Masonic Temple. •
    “ Cincinnati, October 1, 1872.
    “ Iron Moumta/m Oo., St. Louis, Mo.:
    
    “ Gents : Please deliver to the order of A. Swift, Esq., one thousand to twelve hundred tons of iron ore out of the quantity contracted for by us, and oblige, yours truly,
    “ Dewet, Yanoe & Co.”
    The Iron Mountain Company was immediately informed of such order, and the amount of ore therein specified was placed on its books to the credit of Swift’s Iron and Steel Works.
    The water in the Ohio and Mississippi rivers was low in October and the early part of November, 1872, and no boats were sent for the ore. Later in November and during December, the rivers became so full of ice that it was impossible to remove the ore by boat during that year. Swift’s Iron and Steel Works applied to the Iron Mountain Company, while the river was thus filled with ice, for leave to remove the ore in some other manner than by boats, but the Iron Mountain Company declined to grant the request, and the ore was never obtained. In fact, there ‘is no other practicable way by which to remove ore from the landing than by boat.
    As already stated, no ore was delivered to Dewey, Yance & Oo. under the agreement, nor did they receive any order on the Iron Mountain Company for ore. They demanded of Swift’s Iron and Steel Works repeatedly, at Cincinnati, during May, 1873, compliance with the agreement as to the delivery of ore in the spring of 1873, insisting on an order on the Iron Mountain Company for such ore. The only reason given for non-compliance with the demands was the alleged noncompliance by Dewey, Yance & Co., with their agreement to deliver ore in 1872. Dewey, Yance & Co. were ready and willing to pay for the ore according to the custom already stated, that is, according to weight as ascertained on arrival of the ore at its destination, or in case of the loss of the ore or any part of it while in transit, according to its weight as ascertained by displacement, in the way stated.
    The objections of Swift’s Iron and Steel Works to a recovery on the part of Dewey, Yance & Co., and the grounds of recovery on the part of the former on their counter-claim, are presented in exceptions to the refusal of the court below to give certain instructions to the jury, and in exceptions to certain portions of the charge given. So far as it is necessary to state these exceptions, they will be found in the opinion of the court.
    
      Hoadly, Johnson & Colston and John Johnston, for plaintiff in error:
    No valid usage was- shown. S. W. Freight and Cotton Press Co. v. Standard, 44 Mo. 71; Ober v. Carson, 62 Mo. 209; Inglebright v. Hammond, 19 Ohio, 337; Edie v. East India Co., 2 Burr. 1216; Homer v. Dorr, 10 Mass. 26 ; Frith v. Barker, 2 John. 327, 335; Thompson v. Riggs, 5 Wall. 663; Robinson v. United States, 13 Wall. 363; Savings Bank v. Ward, 100 U. S. 195, 206; Randall v. Smith, 63 Maine, 105 ; Eager v. Atlas Ins. Co., 14 Pick. 141; Reed v. Richardson, 98 Mass. 216 ; Warren v. Franklin Ins. Co., 104 Mass. 518 ; Hone v. Mutual Safety Ins. Co., 1 Sandf. 137; Bargett v. Orient Ins. Co., 3 Bosw. 385; Minnesota Central Ry. Co. v. Morgan, 52 Barb. 217; Bank of Commerce v. Bissell, 72 N. Y. 615 ; Rapp v. Palmer, 3 Watts, 78 ; Raisin v. Clark, 41 Md. 158; Dewees v. Lockhart, 1 Texas, 535 ; The Pacific, Deady, 17; 6 South. L. Rev. (N. S.) 845; Schooner Reeside, 2 Sum. 569. And see Tilley v. County of Cook, 103 U. S. 146, 162.
    
      Follett & Cochran, for defendants in error :
    The usage shown is part of the contract. Broom’s Leg. Max. ch. X.; 2 Parsons on Con. 499, 535; Starkie on Ev. *710; Wigram on Ex. Ev. 57; Thompson v. Riggs, 5 Wall. 663 ; Barnard v. Kellogg, 10 Wall. 384 ; Robinson v. United States, 13 Wall. 363 ; Bradley v. Packet Co., 13 Peters, 89 ; Reed v. Ins. Co., 95 U. S. 23 ; United States v. Peck, 102 U. S. 64; Doane v. Dunham, 79 Ill. 131; Lyon v. Culbertson, 83 Ill. 33; Bailey v. Bensley, 87 Ill. 556; Soudder v. Bradbury, 106 Mass. 422; McMasters v. Penn. R. Co., 69 Pa. St. 374; Lucy v. Green, 84 Pa. St. 514; Brackett v. Egerton, 14 Minn. 174; Rindskoff v. Barrett, 14 Iowa, 101; Karmuller v. Kootz, 18 Iowa, 352 ; Hovy v. Pitcher, 13 Mo. 191; Sontier v. Kellerman, 18 Mo. 509 ; Patterson v. Camden, 25 Mo. 13; Gray v. Clark, 11 Vt. 385 ; 1 Taylor's Ev. 178 ; 2 lb. 990, 1002 ; Story on Sales, § 230; 2 Phillips on Ev. 726, 787; 1 Greenleaf’s Ev. §§ 292, 295; 2 lb. § 251; Gibson v. Stevens, 8 How. 384; Corbett v. Berryhill, 29 Iowa, 157; Boorman v. Johnson, 12 Wend. 573; Stapenhorst v. Wolff, 35 Sup. Ct. N. Y. 25; Heald v. Cooper, 8 Greenl. 32; Cushing v. Breed, 14 Allen, 376; Lockhart v. Bonsall, 77 Pa. St. 53 ; Carter v. Phil. Coal Co., 77 Pa. St. 286; How v. Barker, 8 Col. 608; Edwards v. Smith, 63 Mo. 119; Hall v. Smith, 16 Minn. 58; Hunter v. Salt Co., 14 Mich. 98; Douglass v. Garrett, 5 Wis. 85 ; Rice v. Cutter, 17 Wis. 351; Lamb v. Klaus, 30 Wis. 94; Lowber v. Bangs, 2 Wall. 737. And see Wiggleworth v. Dallison, 1 Smith’s Lead. Cas. 546 ; Benj. on Sales (2 Am. ed.) § 215, note; Leake on Con. 196; Anson on Con. 238; Bishop on Con. §§ 571, 572.
   Okey, J.

The question presented in this case is whether a purchaser of iron ore, to be delivered at a specified place, may be bound by usage as to the manner of delivering and place of weighing and making payment for the ore.

The written contract sued on is, as we have seen, an agreement on the part of Dewey, Yance & Go., defendants in error, to deliver to Swift’s Iron and Steel Works, plaintiff in error, “ on the landing at Carondelet,” at $5.50 per ton, cash, one thousand to twelve hundred tons of Iron Mountain ore, to be taken away by the latter during the year 1872; and also, an agreement on the part of the latter to deliver to the former, in the spring of 1873, at the same place and price, the same quantity of ore. If the parties are bound by the terms of this contract, unaided by extraneous testimony, it is clear that the judgment is erroneous. The plaintiff in error ■demanded the delivery of the ore, at the place named in the contract, and within the time there stated, and was then able and willing to pay for it, while the defendants in error did not demand ore at Carondelet, in the spring of 1873, nor were they there ready to pay for it. Under such circumstances, looking alone to the face of the agreement, the defendant in error would not be entitled to recover, but the plaintiff in error could maintain an action. Extraneous evidence, however, shows the rights and obligations of the parties to this instrument to be very different from those implied in the absence of such evidence. Such evidence shows, as we have seen, that there is a uniform, settled custom at Carondelet, well known to the parties, and -with reference to which they contracted, according to which a party holding such an order for ore as the plaintiff in error had, may present it to the agent of the Iron Mountain Company, at the landing, and have placed in his boats, from the pile there collected, the ore specified in the order, the Iron Mountain Company being the owner of the landing and the ore thereon; and that payment is made when the ore is carried by the boats to its place of destination, and there weighed, unless the ore or part of it is lost in transit, in which ease payment is made according to the weight estimated from the displacement of the boats at the time they are loaded. It further appears, that it was well known to both parties to the contract, at the time it was made, that the Iron Mountain Company never permits ore to be removed from the landing in any other manner, or upon any other terms or condition; indeed, that there is no other practicable mode of removing such ore. The question, therefore, is, whether it was competent to show such facts by such evidence, the plaintiff in error objecting; for, if it was, the plaintiff in error, not being able or or willing to remove the ore by boat, cannot recover damages for a refusal to deliver to it such ore.

Extrinsic evidence is admissible to show that the parties to a written agreement have contracted upon a common basis of usage, applicable to the business in which the contract is made, whereby they have impliedly assented to certain conditions not mentioned in the contract. With respect to usage of the character relied on here, it must appear, in order to be valid, that when the contract was made .such usage was uniform, well-established, and known to the parties ; but that the agreement is on its face free from ambiguity, or that such agreement with, and the same agreement without the incidents annexed, imports very different rights and obligations, affords no valid objection to such evidence. In Humfrey v. Dale, 7 E. & B. (90 Eng. C. L.) 266, Lord Campbell said: “In a certain sense, every material incident which is added to a written contract varies it, makes it different from what it appeared to be, and so far is inconsistent with it. If by the side of the written contract without, you write the same contract with the added incident, the two would seem to import different obligations and be different contracts.” And see Myers v. Sarl, 3 E. & E. (107 Eng. C. L.) 306. The usage, however, must not be inconsistent with the words of the agreement nor must it be unreasonable; but the usage here shown seems not to be obnoxious to either of these objections. Robertson v. Jackson, 2 M. G. & S. 412; Leidemann v. Schultz, 14 C. B. 38 ; Cuthbert v. Cumming, 10 Hurl. & Gord. 809; affirmed, 11 Ib. 205.

The cases relating to usage of this character seem not to be in entire harmony. It is difficult to extract from them any more definite rules by which to determine the validity of such usage than those already stated. It is sometimes difficult, moreover, to determine whether the law, in a particular case, will or will not permit such proof. Each case must be determined by itself, aided by such light as may bo derived from the judgments in other cases where the facts are analogous. Upon consideration of the cases cited in argument, and others, we unite in holding that the proof offered in this case to show usage was competent; and there being no substantial conflict as to the facts, the rights of the parties arc determined by such proof. As the plaintiff in error never demanded the ore upon the order, though the defendants in error were able and willing to deliver it, in pursuance of the contract with such incidents annexed, a right to recover damages, with respect to the ore of 1872, never accrued to the plaintiff in error; and, for the same reason, it is wholly immaterial whether the covenants in the agreement should be regarded as dependent or indefiendent So, it is immaterial whether the court properly construed the contract, in charging the jury that if Dewey, Yance & Co. were entitled to recover, one thousand tons of ore would be the basis of such recovery; for if the construction was erroneous, the error was favorable to the plaintiff in error. And these views likewise dispose of the remaining question, as to the right of the defendants in error to recover for the failure of the plaintiff in error to deliver to them ore in the spring of 1873, and sustain such recovery; for the ore ■ could only be obtained on the order of the plaintiff in error; and when the defendants in error, at Cincinnati, in the spring of 1873, demanded such order, the plaintiff in error refused to give it, or to comply with the contract, the defendants in error being at the time able and willing to comply with the agreement in accordance with its terms and such annexed incidents. In view of these facts, the defendants in error were not required to demand the ore at Carondelet in the spring of 1873, or have boats there to receive it. Lowry v. Barrelli, 21 Ohio St. 324. And this is not inconsistent with Mowry v. Kirk, 19 Ohio St. 375, or Simmons v. Green, 35 Ohio St. 104.

The rulings in the court below are not inconsistent with the views here expressed, nor is there any error in the record, and therefore the judgment will be affirmed.

Judgment affirmed.  