delivered the opinion of the court.
Two principal objections to the judgment are all that need be considered on this appeal.
1. Defendants contend that the damages awarded are 'largely in excess of what the averments of the complaint will sustain.
The contention of plaintiff ( The Colorado Smelting Company) is that defendants undertook to deliver ores to plaintiff at the -rate of 1,000 tons per month, or 30 tons per day, for the period of one year; that only 8,000 tons were delivered, leaving 4,000 tons undelivered, and that plaintiff sustained damage to the amount of $10 for each ton of ore not delivered under the contract.
Defendants contend that the contract set forth in the correspondence is not absolute, except for the period of eight and one half months. Their contention is that the proposition in the letter of January 12, 1884, in respect to the period from January 15, 1884, to April 30,1884, is conditional only, to the effect that defendants will furnish the ore should the tenants of the Col. Sellers leased ground be unable or fail to furnish the same during said period; and, further, that the proposition is also accompanied with the proviso, that prior orders for ore shall be first filled by the defendants. Again, defendants insist that the proposition at the close of said letter, to the effect that defendants will furnish the ore for the full term of one year, is accompanied with an “ if,” which *275makes it conditional also. This view seems to us the correct one. The complaint does not aver the performance or happening of any of the conditions upon which any of the offers or promises of defendants were to become absolute for said period of three and one half months. 1 Chitty’s PI. (15th Am. Ed.) pp. 308-810.
2. It is true, in general terms, and as a matter of legal conclusion, the complaint states that defendants promised to furnish 12,000 tons of ore to plaintiff; but this general allegation is not borne out by the written correspondence set forth in Imc verba in the complaint showing the real contract between the parties. The special matters thus set forth in writing must be held to control the general allegation. Dillon v. Barnard, 21 Wall. 430; Everett v. Drew, 129 Mass. 150.
, Concluding, then, as we must, that the complaint states an absolute contract for the delivery of no more than 1,000 tons per month, for the period of eight and one half months, that is, for 8,500 tons only, and it appearing from the complaint that 8,000 tons were actually delivered, it would seem that damages to the amount of 112,796 could not have resulted from the nondelivery of 500 tons.
3. The second objection is to the effect that, under the allegations and evidence, nominal damages only should have been awarded for the breach of contract sued on.
The theory assumed by the plaintiff company is that the contract set forth in the complaint was a contract of bargain and sale. This theory was, we think, properly disposed of by Judge Goddard at the conclusion of the trial. His opinion, inter alia, contained the following :
“ Counsel for plaintiff insist that its damage is the difference between the market value of the ore undelivered on May 2, 1887, and its value as fixed in the contract of January 15, 1884, upon the theory that the contract ivas for the sale of the ore at a stipulated price per ton, and that the ore ' had a market value. Upon, the trial, I was of the opinion that the contract in question was not a contract of sale, and that the ore did not have a market value. In deference to *276the views of counsel, the question was left open and an opportunity was given to present such evidence as they were of opinion would show or tend to show riaarket value. Upon hearing the evidence and upon further consideration, I am satisfied of the correctness of the opinion I then entertained.
“ The agreement in suit is not, in terms, and was not, within the contemplation of the parties, a contract for the sale of the ore mentioned therein. While it provides for the delivery and disposition of the ore, it prescribes no grade or quality, it fixes no stipulated price per ton to be paid therefor. It is rather an agreement for the handling and treatment of so much ore, upon such terms as will realize to the mine owner the metal value contained therein, after compensating the plaintiff for its labor and expense in extracting such values and reducing them to a marketable condition. These values majr vary with each ton.”
The views thus expressed by the trial judge seem to us correct. As we have seen, the contract sued on consists of correspondence between the parties. The contract is not for the delivery of certain specific property, nor for the delivery of any particular body of ore or ores; it was lor so many tons of sulphide ores. Indeed, the correspondence of defendants nowhere specifies that the sulphide ores to be delivered should be the product of the Col. Sellers Mine; nor does it specify or provide for ores of any particular grade, quality, or value.
4. It would seem that counsel were in doubt as to whether • the contract was one of bargain and sale, or whether it was a contract for the treatment of ores at certain specified charges, and so the amended complaint avers plaintiff’s damages both ways; that is, damages by reason of being “ deprived of the profits which it could have realized from the treatment of said ores, as well as other profits arising from the purchase of the said ores.”
The contract was for the treatment of a certain quantity of ore to be delivered by defendant. The contract was purely executory. If it had been fully performed, plaintiff would of *277course, have been entitled to recover the stipulated charges, if not already retained out of the product; and so, also, to recover for part performance, if the nonperformance of the residue was not occasioned by the plaintiff’s own fault. But it is not claimed that plaintiff was not paid for the ores actually furnished and treated. The question for consideration then is: In a contract of this kind, what is the proper measure of the plaintiff’s damages for the failure of defendants to furnish the ores for treatment? The contract being executory, and the ores to be furnished not being of any specified grade, quality, or value, the damages for nondelivery can have no relation to the quality or value of the undelivered ores, because such quality or value could not, without delivery, be determined. The contract called for the delivery, it is true, of sulphide ores, but no particular or specific sulphide ores were contracted for. The damages could not be based upon the lead or other metal to be retained by plaintiff, for it could not be determined, in the absence of delivery and treatment, what quantity of lead or other metal might be contained in the undelivered ores.
The fact that defendant furnished to other smelters sulphide ores from the Col. Sellers Mine, bearing a certain quantity of lead, was not a violation of their contract with plaintiff, for they did not agree that they would not furnish such ores to other smelters, nor did they agree that plaintiff should have the entire product, nor any of the product of the Col. Sellers Mine, for that matter. Hence, it cannot be assumed that the ore furnished to others was the particular ore to which plaintiff was entitled.
But it is said that it was competent for plaintiff to show profits accruing from the treatment of such ores, based upon the smelting charges of $21.50 per ton. This might be true, if such charges were to be paid in any event (a point we need not determine), provided the plaintiff company had alleged and proved the profits which could be realized by it from the smelting charges on such ores of whatever grade, but this the plaintiff company failed to do. Indeed, plaintiff’s principal *278witness testified that it was impossible to determine what the profits would be for smelting such ores unmixed with other ores.
Under the circumstances, therefore, we are of opinion that the contention of defendants is correct; that under the allegations and evidence nominal damages only should have been awarded in this case. The judgment of the district court is accordingly reversed, and the cause remanded.
jReversed.