dissenting: I differ from the Court in the disposition made of this case, and am of opinion that, on a perusal of the entire correspondence and the parol evidence l’elevant to the inquiry, there has been a breach of contract established on the part of defendant company, and that the order dismissing the action as on judgment of nonsuit is erroneous.
The first letter on part of plaintiffs, of date 1 June, is, in substance, that “You can enter our order for one cargo of 250 tons of salt, to arrive at New Bern about November 1st-to 10th, 1906. We, of course, will give you assortment later, *559as we wish as long a time as possible to sell our trade and make up quantity of each kind.”
On 11 June defendant answers: “Beplying to your favor of 1 .June, we have, as requested, entered your order for one canal-boat, load of salt, say approximately 240. to 250 net tons. You can give us assortment any time up to 1 September, but the earlier you can give-it, the better.”
On 1 September plaintiffs write to defendant, giving the assortment referred to, to “arrive at New Bern about 15 October; 100 tons table salt, 100 3-pound bags table salt, etc., (do. Please have same shipped care of Atlantic and North Carolina Company.”
Defendant, replying to this letter, wrote as follows: “We have your valued favor of the 1st, with assortment for your boat load of _ salt, which we are to-day forwarding to the works, with instruction to ship about 15 October. It may be necessary to forward this a little earlier, on account of conditions of freight on the canal, but the difference in time will not be enough to inconvenience you,” etc.
On 5 September plaintiffs wrote: “We are in receipt of your favor of the 3d, in regard to shipping date of our cargo of salt, and you have it wrong. Instead of shipping 15 October, we want it shipped from salt works in time to arrive at New Bern about 15 October or as near that date as possible.”
Defendant replied, on 6 September, as follows: “We have your favor of the 5th, with reference to your order. We sent this in with instructions to make shipment, so that, if a vessel for New Bern could be readily obtained, the salt should reach there by 15 October. You understand that it. is not possible to say definitely that a shipment by schooner will arrive on any particular day, but we will come as near to the date desired by you as we can.”
There was quite an amount of correspondence after this date, the plaintiffs complaining of a failure on the part of *560defendant to deliver tbe salt as per contract, and stating the disappointment and injury to plaintiffs and their customers incident to such failure, and defendant explaining why this was not done. But the letters set out indicated the contract between the parties, if there was one. The testimony further shows, that defendant, writing at different times in explanation of delay, had failed to deliver to plaintiffs any salt till date, 4 December, when the order was finally canceled. Here was an order for salt for use in the approaching winter season, placed in ample time and accepted for delivery on or about 15 October. If it be granted that some margin was contracted for, owing to the uncertainties attendant upon a shipment by water,-the purpose and terms of the contract both gave clear indication that this margin was not to cover a period, at most, greater than two weeks, and that both parties so understood it. And by reason of this margin, too. the contract declared on is not required to be set out with the same exactness of statement as under other and different conditions. The uncertainty was rather in the delay usually incident to water shipment after it had commenced, and there was no indication given that the uncertainty of procuring a vessel for the purpose would in any way affect the time of delivery when the contract was entered into, or until after a delay in breach of such contract agreement had become manifest; and if it were otherwise, the margin allowed, as stated, was evidently not to extend to a period greater than two weeks.
The correspondence between the parties, after it became apparent that a delay would occur, will give some light on the matter, and tends to justify, I think, the position that there had been a wrongful delay on the part of defendant and in breach of its agreement.
On 5 October plaintiffs wrote as follows: “Kindly advise if our cargo of salt has been shipped, and if so, when it is due to arrive. If not shipped, please do so at once. Awaiting your reply,” etc.
*561On 8 October defendant replied: “We bave your favor of the 5th inst. Your salt has not yet been shipped, but we are keeping right after the works, and as soon as a schooner is secured, to go to New Bern your salt will be shipped on her. You understand there are only a limited number of vessels sailing from New York to New Bern, and it is not always possible to secure one promptly, but our people are on the lookout and will ship your salt at the earliest possible moment.”
On 16 October plaintiffs wrote: “We trust you before now, have been able to ship our salt, as our trade is already needing and wanting same. .Griving you the assortment 'as early as we did, we did not anticipate but that you would be able to get it to New Bern by 1 November, anyway,’ and we sold accordingly, hoping it would be there by 15 October, which was time specified. Kindly do the very best for us, as we are needing it.”
On 30 October plaintiffs wrote as follows: “On 1 September, when we gave you assortment for our cargo of salt, we thought that surely you would have ample time to get it to New Bern, N. C., by 15 October, and, allowing two weeks for slow time, it would have placed it there on 1 November. We sold it to our trade for delivery between 15 October and 1 November, and they are all wanting same, yet at this time we have no guarantee from you that it will be shipped before Christmas, which you can readily .see is placing us in an embarrassing position to our trade. Some of our competitors take pleasure in telling the trade that we would not be able to deliver the salt, and at the present time this is true, although it is no fault of ours. We will thank you to give1 us some definite information promptly, in order that we can tell our trade when they may expect the salt. We would also appreciate it if you would advise us if you have already shipped any-cargoes to New Bern, because, should our trade supply themselves,- we would then have no output for the *562quantity bought from you. As this is very important to us, we trust you will give us full information promptly.”
On 7 November defendant wired plaintiffs: “Have wired Scranton for definite information regarding your shipment. Will advise as promptly as possible.”
On 7 November plaintiffs wrote defendant as follows: “We wrote you some days ago in regard to our cargo of salt, and as yet have no reply, and we wired you to-day as follows: ‘Wire something definitely concerning arrival our cargo salt; important’; which we now confirm and await your prompt reply. We axe very much surprised, at this late day, not to have any notice of shipment, for if it now has to be shipped and take several weeks it will arrive-too late for our trade, as all are now wanting and. needing salt, and you certainly have placed us in an embarrassing position. Other people have had salt to arrive at New Bern, and in fact we were notified to-day from New Bern that ours had arrived, and went around and told our customers it would be here in a few days, and later we were advised that it was for T. W. M. & Co. Certainly, buying at the early date we did, and then giving specifications on 1 September, it is strange that . others should receive theirs before we do; and after our. trade have bought elsewhere we will then have no use for the salt. It cost us considerable time and money to sell this cargo; and after having done so, it is hard to have to disappoint our trade, besides losing the profit, and we must say that it does not seem to us as if we have been given a square deal. We trust you will favor us with a prompt reply, fully explaining.”
As heretofore stated, I am of opinion that this correspond-encé and the parol testimony relevant to the jnquirv clearly show that there was a breach of contract on the part of defendant company, calculated to work the plaintiffs substantial wrong, and that the matter should have been submitted to the jury for decision.