[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 147 We think the contract, by its true interpretation, bound the plaintiff to deliver to the defendant, during the year after its date, if required by him, 10,000 carboys of oil of vitriol, and the defendant to take at least 7,000 carboys, during the same time. The undertaking to supply the defendant with vitriol is equivalent to an agreement to furnish it. The defendant was bound to take the minimum amount, whether he needed or desired it for the purposes of his business or not; and the correlative obligation rested *Page 149 upon the plaintiff to deliver any amount within the maximum fixed by the contract, if called for by the defendant. The contract of the plaintiff is not to supply an amount within the limits named, if needed by the defendant in his business. To introduce this qualification would be adding a new term to the contract. The plaintiff was a manufacturer of the commodity. The provision that the defendant should take at least 7,000 carboys, during the year, was introduced for its benefit. The contract fixes the measure of the supply at 7,000 or 10,000 carboys, at the option of the defendant. He could not demand more than 10,000 carboys, or refuse to take less than 7,000. The concluding clause of the agreement may have been inserted for more abundant caution, to repel the inference that any obligation would rest upon either party, after the expiration of the year, to deliver or receive any part of the acid not tendered or called for within that time. It cannot be held to qualify the right of the defendant to the whole 10,000 carboys, if demanded within the year, or relieve the plaintiff from the obligation to furnish it, if required.
The breach of the contract was conclusively established. The defendant, in April, 1874, demanded a delivery of acid, in addition to what had then been delivered, sufficient to make 10,000 carboys; and of this amount there was undelivered, on the twenty-fifth of April, when the year expired, about 2,700 carboys. It is unnecessary to determine whether the defendant could postpone calling for any of the acid until the year was about to expire, and then call for the whole amount. The contract is silent as to when, during the year, the calls are to be made. It provides for a monthly statement of and payment for acid delivered; and as the defendant required deliveries from time to time in his business, and as the plaintiff could only manufacture seventy carboys a day — which was known to the defendant — it was doubtless contemplated that the deliveries were to be distributed during the year. But the evidence shows that up to June, 1873, the deliveries were small, and this was the subject of frequent complaint by the defendant. The parties then, as the plaintiff claims, agreed *Page 150 that fifty carboys a day should be taken to be the rate at which the deliveries should be made. This was a valid arrangement, and if the plaintiff had delivered fifty carboys a day from that time, the whole 10,000 carboys would have been furnished within the year. But it was not complied with. The plaintiff failed to deliver fifty carboys a day, but delivered a much less quantity. The defendant frequently called for more rapid deliveries, but these calls were not responded to. The defendant never refused to receive acid, and did nothing to justify the plaintiff in supposing that the whole amount would not be called for. On the contrary, the plaintiff must have understood, from the advance in the market price of the article, and the frequent complaints made by the defendant of the neglect to furnish the acid, that he would require the full amount to which he was entitled under the contract.
The judge at the trial directed a verdict. There was no controversy as to any of the material facts, and it was a case where a direction of a verdict was proper. But we think the court erred in respect to the damages, in allowing them at the rate of two and one-half cents a pound on the acid undelivered, instead of at two and three-eighth cents, which was the market price of the acid manufactured by the plaintiff.
The judgment should therefore be reversed, and a new trial ordered, unless the defendant consents to reduce the judgment, in the respect mentioned, in which case, the judgment, as modified, is affirmed, without costs to either party.
All concur.
Judgment accordingly. *Page 151