The opinion of the Court was delivered, November 7th, 1881, by
Green, J.This action was brought to recover damages by one who had contracted in writing to deliver railroad ties against the company who had agreed to take them, for refusing to take ties tendered for delivery. The company defended on the ground that the ties offered for delivery did not correspond with the requirements specified in the contract. Considerable testimony was given in support of this defence. Some of the ties had been received and paid for, others had been refused. The defendant, by their second point, asked the Court to instruct the jury that if they believed the plaintiff had been delivering, and attempting to deliver, inferior ties of a different kind from those specified in the contract, and that the defendant in refusing to take ties from the plaintiff' had reference to such inferior ties, the plaintiff could not recover on account of such refusal, even if the words of refusal might bear a broader construction. This point ought to have been affirmed. It was based upon a hypothesis which was supported by actual testimony in the cause, and the defendant had a clear right to a definite instruction upon the effect of those facts. But the learned judge of the Court below refused the point. In doing so he added an explanation about another matter, foreign to the essential proposition of th¿ point and overlooking its effect. Neither the telegram nor the letter, sent by Jackson to the plaintiff, certainly and absolutely related to this particular contract. Whether they did or not was a disputed fact in the case. And if they did, and were sent because of the inferior character of the ties, the defendant would or might be authorized to terminate the contract in this or any other mode. Yet the whole effect of the inferior character of the ties, as bearing upon the right of the defendant to terminate the contract on that account, was taken from the jury by the answer to this point. Nor is this defect compensated by proper instructions on the subject in any other portion of the charge. Other matters are spoken of quite foreign to the case, but as to tbe vital subject nothing further was said.
In their third point the defendant called in question the validity of an act of rescission, by a subordinate officer, of a *319contract made by his superior officer without any authority to rescind. The proposition of the point was legally sound, and should have been affirmed without qualification. Yet it was refused with a reference to the explanation made in answer to the second point. That explanation furnishes no proper response to the point, and here, also, there was error.
The answer to the plaintiff’s first point was still more erroneous. The point itself utterly ignores the entire defence set up as a justification, and of the rescission of the contract by the defendant, and asked for a binding instruction upon the mere fact of refusal without reference to any other facts in the case. The refusal to take ties under the contract by the defendant, if it was unauthorized by any act of the plaintiff was a breach of contract. But if by his own conduct he had released the defendant from their obligation to take his ties, then their refusal to take them was no breach. With an explanation of this kind the point could have been affirmed. But it was affirmed absolutely, and then the learned judge went still further, much beyond anything contained in the point, and told the jury that if the telegram and letter were sent by Jackson, that would amount to a breach of the contract. In this there was clear and gross error, it was the assumption by the Court of the whole power of the jury over this part of the case. Jackson’s authority to rescind was a disputed fact in the ease. Without commenting upon the question whether the plaintiff had given evidence to prove such authority, it is enough to say that the defendant gave direct and positive testimony that he had no such power. More than that, it was a disputed matter whether the letter and telegram referred to ties under this particular contract. The plaintiff' was at the same time delivering hemlock ties to, the defendant under another agreement. He testified himself, “ while this contract was in existence I had another contract from Mr. Jackson for hemlock ties that was in existence.” As the letter contains a reference to hemlock ties, and the telegram mentions no particular kind, and no particular contract, it was a question of fact in the case whether the letter and telegram did relate to the contract declared upon in this suit. This question it was the special province of the jury to decide. Still more than this, the letter was not an absolute refusal to take the ties, nor was it an order not to deliver any more. The language is, “ You had best stop furnishing.” This was scarcely more than advice, and was certainly not a peremptory refusal. If followed up by such a refusal in fact, it might have been regarded as testimony indicative of such a purpose, but all that would be for the jury. In no circum*320stance was it proper for tbe Court to decide all these matters by a binding instruction to the j ury.
As this was an action by the vendor against the vendee for refusing to receive articles sold, we think the answer to the plaintiff’s third point as to the measure of damages was correct. In such circumstances the difference between the price agreed to be paid and the cost of the article to the plaintiff would be the proper measure of his damage.
On the fourth, fifth, and sixth assignments the judgment is reversed, and venire facias de novo awarded.