Opinion by
Rice, P. J.,According to the testimony of both parties, the plaintiff agreed to deliver, and the defendant agreed to take and pay for, 240 carloads of prop timber during the year 1905, in quantities of twenty carloads a month at $4.70 per ton for one kind, and $4.85 per ton for another kind. In this action of assumpsit the plaintiff sued to recover the contract price for a certain number of carloads, and the defendant pleaded as a set-off damages in consequence of the plaintiff’s failure to deliver (1) a certain number of carloads for which he, the defendant, had given orders; (2) a certain number for which orders had not. been given at the time the plaintiff brought suit. In the contract as thus far stated the place of delivery was not expressly determined. Therefore, it is contended by appellant’s counsel upon the authority of Barr v. Myers, 3 W. & S. 295, it was incumbent on the plaintiff to tender the whole number of props within the time specified. It appears, however, by the course of dealing, by the plaintiff’s testimony which was not contradicted, and by defendant’s averment in his claim of set-off, that the timber was to be shipped upon orders, given by the defendant to the plaintiff, to the places designated in the orders. This being so, the deféndant was to become the actor in the transaction; therefore, so far as the number of carloads for which he did not give orders during the year is concerned, it was, prima facie, not necessary for the plaintiff, in order to save himself from default, to tender them at defendant’s residence or place of business. If, however, while still under obligation to fill the orders, up to the number of 240 carloads, which the defendant might give, the plaintiff expressly refused to go on with the contract, the defendant was not under obligation to go through the idle form of -giving orders in order to hold the plaintiff for a breach of his contract to. deliver 240 carloads during the year. So also, if without valid *480excuse and in spite of the defendant’s repeated remonstrances, the plaintiff failed to fill orders that were given, this might, under some circumstances, justify the defendant in withholding further orders, and still hold the plaintiff for a breach as above stated. But in determining whether the plaintiff would be liable upon that ground it would be necessary to consider what the defendant’s conduct had been in giving and earn celing orders. If in that particular there had been lax performance on his part — for example, unexcused failure from time to time to give the full number of monthly orders contemplated by the contract, or unwarranted cancellation of orders that were given — he was not in position to say that the plaintiff’s delay in filling, or even failure to fill, some of the orders that he gave was a breach of the contract, which, without more, entitled him to damages for the nondelivery of the carloads for which he gave no orders. Many facts, depending upon oral testimony not always in harmony, entered into that Question, and it would have been error for the court to withdraw it from the jury by binding direction that such breach was conclusively established. Upon this branch of the case we refer to the legal principles recognized in Forsyth v. North American Oil Co., 53 Pa. 168; Hazleton Coal Co. v. Buck Mountain Coal Co., 57 Pa. 301; Price v. Beach, 20 Pa. Superior Ct. 291; Cogley v. Browne, 11 W. N. C. 224; Portland Ice Co. v. Connor, 24 Pa. Superior Ct. 493.
But as to the orders that were given by the defendant, accepted by the plaintiff and not filled, a different question is presented. According to the plaintiff’s testimony, the defendant ordered from time to time during the year, 154 carloads, and canceled orders for twenty-one carloads, thus leaving orders for 133 carloads to be accounted for, of which forty-three were unfilled. Two of the reasons given for not filling these orders and for delay in filling others were inability to get cars and unfavorable weather conditions; but, as pointed out by the learned judge below, it was shown by the plaintiff's own record, to which he testified, that when he was complaining that he could not get cars he was shipping a great many cars to other people, and that the same was true in the months *481in which he claimed he was prevented from filling the orders by the bad weather. We think the learned judge should have instructed the jury that upon the plaintiff’s own showing, these were not valid legal excuses for his noncompliance with his contract. Again, the defendant claimed that he was compelled to cancel some of the orders, and to obtain the timber elsewhere so as to comply with his contracts, with other people, by the plaintiff’s unreasonable delay in filling them. The learned judge’s instructions, that the plaintiff was entitled to a reasonable time after the orders were given to deliver the timber to the persons and places designated therein, is not and cannot be seriously questioned; but it is contended that he erred in instructing the jury as to what could be considered by them in the determination of the question of reasonable time. Upon this subject the plaintiff testified: “after receiving the order we send the order south; it was then sent to our cutting ground and must take its rotation. If we have timber on the banks for other orders that came in previously, the timber on the banks must be moved into the cars before we can cut timber and put on the banks to fill these orders.” Again he testified, “We have not got timber ready cut.' We cut timber to order: It would not be possible to ship orders as fast as we get them.” There are portions of the instructions quoted in the second assignment of error which might well be taken by the jury as justifying them in considering the time required by the plaintiff, not only to forward the orders to his employees in Virginia, but also to cut the timber after they received them, as entering into the question of reasonable time. The manifest objections to this view are: that the contract was to deliver, not to cut and deliver, twenty carloads of timber a month; it was not a term in the contract that it should be taken from the plaintiff’s land and no other; the subject of the contract was not an article that could not be procured elsewhere; but, so far as appears, if the exigencies arising out of his contracts and dealings with other parties, or the time required to fell the trees, and convert them into prop timber made it impossible for the plaintiff to ship the timber promptly from his own lands, he could have obtained *482it in the market. Having undertaken to deliver twenty carloads a month as they were ordered, it was incumbent on him to make such preparations and arrangements as would enable him to comply with his contract; at least, the consequences resulting from his failure so to do cannot be visited upon the defendant. We are constrained to say, therefore, that there was error in these two particulars in the judge’s instructions quoted in the second assignment of error." And we remark in addition, that upon the question of breach we see no valid ground upon which it can be claimed by the plaintiff, that, so far as the orders accepted by him not canceled by the defendant and unfilled were concerned, there was not a breach of the contract. We are of opinion that' to that extent the court should have said to the jury there was a breach.
We are constrained also to the conclusion that the instructions complained of in the third assignment are open to criticism upon the ground that they seem, or might be so taken by the jury, to give them too wide a latitude in determining the questions for decision, particularly the question of damages. Of course, as the counsel for appellee well says, it was for the jury to determine what estimate of damages should be adopted by them; but the conclusion of these instructions with the remark “you can adopt such estimate of damages as you think proper,” unaccompanied by a clear statement of the legal measure of damages that should guide them in determining what estimate it was proper for them to adopt, had a tendency to mislead.
The complaint that the court submitted to the jury to determine whether there was a contract to deliver 240 carloads during the year in quantities of twenty carloads a month; is not well founded. There was no dispute as to these matters, as the appellant’s counsel well says, but viewing the charge as a whole, in the light of the testimony and the manner in which the case was tried, we are convinced that the jury could not have understood that either the existence or these terms of the contract were in dispute and that the determination of the question was submitted to' them. There is part of one sentence of the charge quoted in the first assignment that, *483taken by itself, might perhaps bear that construction, but. by express words in other portions of the charge, and throughout the entire charge by implication that could not be misunderstood, the learned judge told the jury that there was no dispute as to these matters.
The second and third assignments of error are sustained, the judgment is reversed and a venire facias de novo awarded.