The opinion of the court was delivered, June 20th 1866, by
Read, J.It is clear that the written contract in thi^ case was broken by the defendant, who refused to carry coal for the plaintiff agreeably to its stipulations. His defence was principally a letter of the 6th of May 1863, from the plaintiff to the defendant, which he never answered or took any notice of, nor did he in any way accept the proposition contained in it, and therefore the written contract remained unaltered and in full force. The defendant (then offered testimony to prove a contemporaneous parol contract in addition to the written contract, varying and contradicting the written contract, which the court properly rejected. This dis- • poses of the 1st specification of ex-ror. The 2d specification of error is answered by what we have said of the letter of the 6th *465May, and the answer of the court to the defendant’s 2d point, as contained in the 8d specification of error, was perfectly cor rect. There is nothing in the 4th specification, for the 3d point assumed as a fact what was entirely contradicted by the whole evidence, and it would have been error in the court to charge as requested. There was really no evidence that the defendant was prevented from performing the contract by the acts or omissions of the plaintiff or his agents, but the court submitted it to the jury under proper instructions, who found against the defendant.
We perceive no error in the measure of damages or the elements composing it, and the claim of the plaintiff, as laid before the jury, establishes this view.
The whole difficulty in this case arose from a rise in price of freight above the contract price, and that the defendant found it more profitable to carry coal for others at the higher rates.
Judgment affirmed.