The opinion of the court was delivered, by
Agnew, J.
This case presents three principal questions, the decision of which will dispose of all the assignments of error. I shall not discuss them in the order of the argument, but will notice first the question of rescission, as it bears directly on that of readiness and willingness to comply with the contract after the attempted rescission.
The notice of rescission dated and delivered on the 14th of September 1863 was absolute, and was founded on an alleged refusal to pay on demand for the oil theretofore delivered. Had the contract been performed literally according to its strict terms before this time, and the plaintiff had actually refused payment, it could'scarcely be denied that the defendants might have availed themselves of this refusal to escape from a losing contract, which they obviously desired to avoid. But the evidence shows that both parties had taken a great deal of latitude in its performance, without manifesting any intention to hold each other to a strict and literal performance. Although the delivery of the oil was to be commenced immediately by the defendants, they did not begin to deliver until several days had elapsed, and the plaintiffs had made four demands for it. After they began, the evidence is also clear that they did not deliver in the quantities required.by the plaintiffs, and were even guilty of a breach of their contract, by compelling them to wait for further delivery until they had filled an order for Pennock, Ball & Co.
The oil was to be paid for on delivery in their own barrels on *173the cars,- pumped free of water, subject to inspection, and gauged in the barrels ; jet, though inspected by the plaintiffs’ agent, the bills were not made out and gauger’s certificates furnished on delivery ; nor was the money demanded, the amount of the delivery being unknown until the bills were rendered and gauger’s certificates produced. This rvas done at the office of the plaintiffs in this city, thirty miles distant from their works, thus necessitating the sending of the bills and certificates to the works for verification by the actual delivery. No doubt, practically, it was very inconvenient, perhaps scarcely possible, to perform the contract literally on either side, and therefore, by mutual consent, its terms were liberally interpreted in their practice. When the notice of rescission came it fell upon the plaintiffs like a sudden thunder-clap. It was founded too upon an alleged refusal to pay on demand, a matter more seeming than real. True, young Ogden, the secretary, had become petulant, in consequence of what he considered the annoying conduct of young Howard, and rashly said in the street he would not pay ; but the real intention of the company itself to pay is shown by the actual payment on the same day the notice was served for all the oil known to be delivered ; and on the following day for the remainder, the bills of which had escaped observation. This was followed by repeated demands for more oil under the contract, which the defendants absolutely refused to deliver.
Under these circumstances we discover no error in leaving it to the jury to determine the facts as to the mode of performance adopted by the parties, including the want of promptness in payment, alleged as the ground of rescission ; and in instructing them that after a liberal indulgence allowed on both sides, the defendants could hot suddenly rescind without a fair warning of their intention to insist upon a literal compliance with the contract in futuro. The contract then being still in force, as the finding of the jury on the facts evinces, the evidence to show the intention and readiness of the plaintiffs to comply with the contract was sufficient to go to the jury. Indeed, it is difficult to perceive how the evidence could be required to prove more ; in the absence of any warning from the defendants of their dissatisfaction with the prior loose mode of performance, and of their intention to require a literal and strict performance thereafter. On the very day of the attempted rescission, and the day following, the plaintiffs paid up all they owed, and demanded fulfilment of the contract by the defendants. This was met by an unqualified refusal to' deliver on the contract. Since, the demand was made at their works, and once at their office in this city, and as often peremptorily refused. The defendants did not call for immediate payment on delivery, but refused to deliver at all, on the ground *174that the price of oil had risen, and they were losing money on this contract. It was clearly not a question of literal performance in future, but a denial of obligation altogether, and a refusal to stand on the contract for a reason found by the verdict to be insufficient. Not only was the contract one in which it was impossible for the plaintiffs to make a tender of money until delivery on board of the cars in quantities ascertained by gauging, so as to determine the sum to be tendered, but the refusal of the defendants to perforan at all excused the tender if necessary. The court was therefore justified in refusing to charge, that the evidence was insufficient, and in submitting to the jury the question of the plaintiffs’ willingness and readiness to pay and otherwise to comply with the terms of the contract. We think, also, that there was no error in leaving it to the jury to say under the evidence, to what barrels the contract had reference — whether the statutory or the customary. It is not denied, that a contract of parties for so many barrels of oil or other liquid, is to be presumed to be made upon the basis of the statutory number of gallons, if there be nothing on the face of the writing to show the contrary. But here the contract not only refers to barrels of good merchantable crude oil, but requires the oil to be delivered in the barrels of the defendants, and that these barrels shall be returned. The natural and evident interpretation of the contract is, that the barrels meant are the same in quantity as those which belonged to the defendants — for these are the barrels to be used in the delivery, to be gauged and to be returned. Now when nothing whatever in this writing indicates a difference between the barrels of purchase and those of delivery, it is asking us to go very far to say that the parties meant the purchase to be governed by the statutory number of gallons, while the delivery should be in the customary oil-barrels, and that these should be gauged and returned. It is very clear from the evidence, that the customary oil barrel contains forty gallons, and that these were the barrels used by the defendants in their business.
There was no error, therefore, in thus leaving the case to the jury.
Judgment affirmed.