This is not a contract for the delivery of five thousand tons of coal absolutely; nor one in regard to which the defence must stand upon the impossibility of performance. The plaintiffs’ order for that quantity, accepted by the defendant, was based expressly upon the terms and conditions set forth in the proposal by which the defendant offered his coal for sale. The purport and effect of this proposal are to be ascertained from the writing, aided by the evidence of the usages of the business, the situation of the parties, and the relations which the business of the defendant, as seller at the place of delivery, bore to the business of working the mines and transporting the product to that place. It is thus manifest that the plaintiffs’ order was given and accepted as one only among a great number of contracts-of sale, by which the product of the mining operations of the defendant, during the “shipping season” of that year, was to be distributed to his several customers. It is also clearly ap *485parent that the delivery was not intended to be made all at one time, nor at any precise times, nor upon mere demand; but from time to time, during the season, in accordance with the regular and usual course of the business, as the defendant carried it on. The arrangements in regard to the procuring of vessels, the order of loading in “regular turn,” and the separate settlement for each cargo, accord with this interpretation of the contract. The contract itself being thus defined, the obligation of the defendant for its performance is modified by the stipulation that “ every effort will be made for the fulfilment of this contract,” and is further qualified and limited by the proviso, “ but if prevented or obstructed by breaches or other unavoidable occurrences on the canals or railroads, or at the mines,” there shall be no claim for damages. Such obstructions did occur, by the interruption of the means of transportation from the mines, for about two months in the latter part of' summer There was evidence of some other causes of delay in the spring. The court ruléd, favorably to the plaintiffs, that these obstructions did not relieve the defendant wholly from his obligation to deliver the coal to the plaintiffs, or from damages for any failure to deliver, whether before or after the interruption occurred; but that it relieved him only to the extent to which such failure was caused solely by the obstruction ; that he was bound, notwithstanding the interruption, to use every effort to perform the contract in accordance with its terms, by the delivery of the coal. In determining whether the defendant had done this, the jury were instructed that they should take into consideration the entire business of the defendant; that the defendant was not bound to deliver to the plaintiffs the whole amount of their order to the exclusion of other customers; but that his obligation to the plaintiffs would be satisfied by delivery to them of such a proportion of his reduced means of supply as the amount of the order bore to the whole amount of sales; and that, in estimating the whole amount of the defendant’s sales, the ordinary and usual amount of his home trade might be included. This is the substance of the instructions upon the most important part of the case; and we are all satisfied that the instructions were *486correct and properly applicable to the peculiar character and circumstances of the case.
The jury were cautioned that this apportionment by the defendant should be made fairly and in entire good faith; that he had no right to deprive the plaintiffs of their full proportion of the supply from the mines, for the sake of obtaining a larger price by sales to other parties, nor by new contracts or sales not in the course of his usual and ordinary business, after the cause of deficiency happened.
The instructions were very full, and seem to guard sufficiently against any misapprehension by the jury. Upon this report we cannot go into the facts, to see whether "they warranted the result to which the jury came.
We do not see that there is any reasonable ground for the complaint of the plaintiffs that, in stating the position of the case and of the parties, the presiding justice unfairly prejudiced the minds of the jury towards them, by representing their claim in the light of a gambling speculation. The profit which the plaintiffs would have made upon the coal if it had been delivered, and their disappointment at not obtaining that profit, are mentioned as showing the importance of the case to them, and the light in which they must naturally regard it. It is not suggested that it would be unfair or hard in them to take this profit, if the terms of their contract entitled them to it. We do not think that the jury could have been led to form any improper bias ft Dm the remarks of the presiding justice upon this part of the case. Exceptions overruled.