The opinion of the court was delivered, by
Read, J.The Buck Mountain Coal Company was incorporated by an Act of Assembly passed the 16th June 1836, Pamph. L. 803, for the purpose of mining of coal, and for transacting *300the usual business of companies engaged in the mining, transporting to market and selling of coal and the other products of coalmines, and were subsequently authorized to construct a railroad with one or more tracks, to intersect the navigation of the Lehigh Coal and Navigation Company, which they completed in 1840, and established a depot at Rockport, where they broke and prepared their coal, and thence shipped it by the said navigation to market. The Lehigh Coal and Navigation works, therefore, became an indispensable and all-important link in their chain of transportation; a fact well known to all their customers, as well as the quality of their coal and the mines from which it was taken. Of course all contracts made with the defendants were made in full view of these facts. On .the 4th of June 1862 an unprecedented freshet in the river Lehigh swept away all the upper Lehigh Navigation works, which have never been restored above Maueh Chunk, and completely stopped all transportation of coal by the defendants to market.
The loss of life and property on the line of the river by this act of God was very large.
On the 28th May 1862, the defendants contracted to deliver to plaintiffs 4000 tons of their coal at their wharf in Philadelphia, from their mines, in such quantities as the plaintiffs might call for, at the price for the first 1000 tons of $3.43 per ton, the balance, say 3000 tons, at $3.43 per ton, with the addition of any advance in freights and tolls which may take place on or before July 1st 1862, the plaintiffs to pay any tax that may be imposed by the government. Payment to be made on the 1st of each month for the delivery of the preceding month. The coal delivered in the present month (May) to be considered as a portion of the quantity contracted for. The first 1000 tons is settled by the verdict, and the only question is as to damages claimed by the plaintiffs for the non-delivery of the remaining 3000 tons.
The defendants offered within a reasonable time after the freshet, to deliver their coal according to the terms of the contract, but this was declined. All the facts were submitted to the jury under the charge of the court, and the only question is, whether the instructions of the judge were correct.
The delivery of coal was to be at intervals during the period of a year, as it suited the plaintiffs, who had no accommodation for storing it in large quantities. The learned judge, after stating the relations of the parties, says: “ If, therefore, the only medium of transporting the coal in quantities, such as would be required in the present contract, was destroyed by an inevitable flood, and the defendants were thereby prevented from fulfilling the contract, they are excused from compliance therewith during the time they were so prevented, but no longer. That the defendants may shelter themselves from liability to damages for non-delivery of *301coal during the time after the occurrence of the disaster, and before they were able to resume its performance. Measuring that time by the time of the offer to furnish coal, it was about one month. Was this unreasonable delay ?” Certainly not in such a contract, and where the fulfilment to the exact letter was prevented by an act of God, over which they could have no possible control, and which they could not have in any way provided against, as they were not the owners of the navigation works. “ When the defendants offered to resume a compliance of their contract, they had a right to insist on advance on freight and tolls, if any advance occurred on or before July 1st 1862, from any cause which they could not control. The agreement to pay advance freight and tolls is general, and it applies to increase by the most usual and ordinary mode. Did an increase occur before the 1st of July ? If it did, and lasted until performance or offer of performance by the defendants, they had a right to demand it.”
“ The offer to furnish coal, therefore, on the basis of the contract, including the advance freight and tolls, if any existed, was, if made and refused, a sufficient compliance on the part of the defendants, and if the plaintiffs did not choose to take coal, the fault is theirs, and they cannot recover damages, if the offer was made in good faith.”
This is the whole case before us; and we perceive no error in the rulings of the learned judge, which are very moderate in a case where the act of God should properly leave the parties without any remedy on either side.
In the case of Appleby v. Myers, in the Exchequer Chamber on 21st June last, 16 Law Times 669, where the plaintiff contracted with the defendant to supply and put up on the defendant’s premises an engine and certain machinery, for which he was to be paid a lump sum on completion; and when a portion of the machinery was put up and fixed, but before the whole was completed, an accidental fire broke out on the defendant’s premises, which destroyed the premises and so much of the work as the plaintiff had done upon them, and rendered the further performance of the contract impossible; it was held that the plaintiff was not entitled to recover the whole, nor any portion of the contract price.
“We think,” said Justice Blackburn, “that when, as in the present case, the premises are destroyed without fault on either side, it 'is a misfortune equally affecting both parties, and excusing both from further performance of the contract, but giving a cause of action to neither.”
The verdict of the jury effects the same result in this case, and as the plaintiff's have failed in sustaining their specifications of error,
The judgment is affirmed.