This was an action of assumpsit brought byappellee against appellant to recover damages accruing by reason оf the failure by the latter to deliver coal to appellee during the month of March, 1889, as required by the terms of a written contraсt between the parties. A jury was waived, the cause was tried by the сourt, a finding and judgment for plaintiff for $337.28 damages and costs of suit resulted, and defendant took this appeal.
On behalf of appellant, it is contended that “the judgment was excessive.” That the notice givеn appellant by the appellee to deliver coal during the month of March “ was not such a one as the contract rеquired.” That before giving such notice, appellee had violаted and broken the contract, and hence appellаnt was not bound to deliver the coal called for by the notice. And, lastly, that the provision in said contract, “ In case of inability of said party of the first part to fulfill its obligations in accordance with this аgreement, said party of the second part shall have the right tо buy coal from where-ever or from whomever it may choose,” was a waiver of damages in such case, for a failure by aрpellant to furnish coal as required by the terms of the contraсt. In other words, the only penalty contemplated by the partiеs for such breach of contract was appellant’s loss of profit upon the coal purchased by appellee from other parties. This is not our construction. The clause abоve quoted follows immediately after this clause of said contract: “ It being understood and agreed that said first party will not be required to furnish coal under this agreement, during any portion of time when prevеnted by general strike or strikes, or other causes beyond its control, from handling the product of its mines,” and should be construed in connection with it in order to ascertain the real intent and understanding of the рarties. Adopting this method we reach the correct conсlusion that appellant should be absolved from liability for such breаch for inability to fulfill its obligations occasioned by the causes named, and none other, viz., general strike or strikes or other causеs beyond its control, and unless these causes, or one of them, prevented, appellant was bound to furnish the coal as it had agreed to, or to respond in damages for its default.
After a thorоugh examination of the record, and a careful considerаtion of all the reasons urged for reversal in the printed argument оn behalf óf appellant, we are satisfied the damages assessed were not excessive, and the notice to deliver cоal was not defective, but was such an one as the contract required. The breach of the contract by appellant wаs proved as averred, and appellee did not break its contract or forfeit its right to recover by its purchases of cоal from other parties under the facts proven. Mor was aрpellant prevented from delivering the coal, as required, by any of the causes above mentioned, and hence was not absolved from liability for such breach. In our opinion the finding and judgment of the Circuit Court is fully sustained by the evidence, and we perceive no reason for reversing the same.
The judgment is affirmed.
Judgment affirmed.