This action is brought to recover damages for an alleged breach of the contract in question. Our first inquiry, therefore, is "whether or not defendant has failed to perform his contract. Plaintiff commenced the delivery of the com September 9, 1895. The crop was damaged by the frost on Saturday night, September 14th, following. Plaintiff contends that it was the duty of defendant under his contract to receive all the corn during those six days, and that because he declined to do so he violated his agreement. The contract provided that plaintiff should deliver the corn “ at the factory operated by me (defendant) in the town of Camden, H. Y., or at any other place or places in the town of Camden, at such times and in such quantities as the *320party of the second part (defendant) may direct, and in good canning condition.” Plaintiff contends, that the word's: “At such, times and'in such quantities,” etc., must be construed as applying only to the com delivered elsewhere than at the factory, and not as applying to the corn delivered at the factory. If that is so, then the clause: “ and in' good canning condition,” must be limited . also as applying only to the com delivered at places Other than the factory. That construction would require defendant to-pay for all the com delivered at the factory whether in good canning condition or not. That is, plaintiff could have picked the com before it was sufficiently matured for canning purposes or could have waited until it was too ripe, and yet defendant would have been.obliged to pay'for it. I do not think the contract will,bear that construction. I think the words, “ at such times and in- such quantities,” etc., must be construed as applying to the corn delivered both at the factory and elsewhere. It' is very clear to me that the parties intended by this-contract that defendant should-have the right to limit the quantity of corn .delivered at the factory so that it would not spoil upon his hands before it could be canned. Plaintiff contends that this construction of the contract would enable defendant, in case he did not intend to take more than half the quantity of com contracted for, to postpone delivery until the ' crop was destroyed, and thereby avoid the performance of his contract and yet escape liability for nonperformance. I do-not think so. If the. postponement of'delivery by defendant had-been in bad faith and not -because he had all the com he could handle, plaintiff very likely -could have given some evidence of it. But no evidence was given upon the trial tending to prove any such fact and no such claim was made at the trial so far as the record discloses.
But in any event the contract, being free from ambiguity, should not be given an unnatural construction or one' not contemplated by the parties at the time it was made. The parties by their contract agreed that the com should be .delivered at such tunes and in such quantities as defendant directed. Defendant exercised the power given him by the contract and gave-directions as to the time and quantity of delivery. There.is no evidence which would sustain a finding that he acted in bad faith. Defendant doubtless was obliged to take the com before it became too ripe. TTad he delayed receiving the crop until it was not in good canning condition because of being too ripe, very likely the delay would *321have been unreasonable; because evidently the parties .contemplated, when the contract was made, that defendant should receive the crop before it became too ripe. Plaintiff, however, testified that this corn, except for the frost, would have remained in good canning condition during the week following the frost, so far as he knew, and no evidence was given to the-contrary. I, therefore, do not think the evidence would sustain a finding that defendant unreasonably delayed the delivery of- the com. By the- terms of ■the contract defendant was to pay only for com “ delivered ” (as provided in the contract) “ in good canning condition.” As it was conceded the damaged com was not and could not be delivered in good canning condition, there was no liability on the part of defendant to pay for it. Had the parties contemplated that the loss by frost before- delivery should be borne by defendant the contract should have so provided. I am of the opinion that the justice erred in reaching a conclusion that defendant had failed to perform his contract, in hot accepting the entire crop before the frost, As I am of the opinion that plaintiff failed to establish any cause of action against defendant, it is .unnecessary to examine the other questions raised upon this appeal.
The judgment must be reversed, with costs.
Judgment reversed, with costs.