The opinion of the court was delivered, January 9th 1872, by
Agnew, J.A careful examination of this case leads us to the conclusion, notwithstanding the numerous assignments of error, that the court below committed no substantial error. Seven of the assignments depend on the proper interpretation to be given to the contract of May 26th 1866, and this therefore is the first matter to be noticed.
*209Cleveland & Co. agreed to make and deliver at their works, or on their platform at the railroad in Mill Creek, 240 barrels of oil, standard white, fire test 110 degrees by New York inspection, in good sound barrels, well glued and painted blue with yellow heads, at any time between the 1st of July and the 1st of December, on Sterrett giving ten days’ notice at his option. In consideration of this agreement Sterrett agreed to pay at the rate of thirty-six cents a gallon in two specified instalments and th.e balance on delivery, and to adjust the government tax in order to allow exportation. It is evident that in this contract Cleveland & Co. were the actors, and were to make and be ready at their works or on their platform to deliver the oil in the quantity according to the quality, and in the barrels required. The substantial part of their agreement was to make and deliver to Sterrett 240 barrels of oil, and the last day they had for performance was the 1st day of December. Clearly they were bound therefore to be ready, and to have the oil in barrels at their works or on their platform on the 1st day of December unless, by the exercise of his option, Sterrett had demanded delivery at an earlier date. This by the contract he could do, on giving the required ten days’ notice, to enable the defendants to be ready, at the time specified in the notice, to deliver at the works or on the platform. But failing to exercise his option and give the notice, it is plain the contract fixed the time of delivery as the 1st day of December, for beyond this date Cleveland & Co. had reserved no day of grace. It is very clear on all the evidence Cleveland & Co. were not ready then to deliver, and their failure gave Sterrett the right to rescind and recover back the money paid on the contract, unless Sterrett had waived performance at the day, and this question was fairly submitted to the jury, and found by them against the defendants. This interpretation of the contract disposes of the 1st, 2d, 8d, 10th, 11th, 12th, 13th and 14th assignments of error; and the finding of the fact by the jury that the defendants failed to make and to be ready to deliver the oil on the 1st day of December, according to the contract; disposes of the qualification of the answers to the defendant’s 6th and 7th points. The defendants, not being ready to deliver the oil and comply with their contract, could not demand the money of the plaintiffs, nor recover damage from the plaintiff for his refusal to receive the oil after the 1st of December. These are the only assignments of error which need to be noticed, and finding no substantial error in the record,
The judgment is affirmed.