delivered the opinion of the Court.
On behalf of appellant, it is urged that the trial court erred in denying an oral motion made by defendant’s attorney, on behalf of Rowland, one of the plaintiffs, and with his consent to dismiss the suit. This, if an error, is not an error appellant can set up. Our Supreme Court say in Winslow et al. v. Newlan et al., 45 Ill. 147: Hennessy, one of the plaintiffs, entered a motion to dismiss the suit; the other plaintiff resisted the application and the motion was overruled. It may be asked how appellants can assign this for error. They did not enter the motion and it was only a decision against one of the plaintiffs; if they, by collusion, procured Hennessy to enter the motion, then it was a fraud upon Newlan that the court would not aid in consummating. It is insisted also that the contract declared on is not one that needs any interpretation by the acts of the parties thereto. That the words “ free on board ” mean that the coal had to be loaded on the cars free from all expenses to the buyer, and this could not be done if the buyer bad to furnish cars. Hence the interpretation of the contract given by the evidence outside the contract is an interpretation directly contrary to the express provisions thereof and not allowable.
It was averred in the said third amended declaration upon which the cause was tried, “ that by the construction put upon the contract by the parties thereto after it was made and when plaintiffs entered into possession of the mine, defendant assumed the duty of furnishing the necessary cars on which to load said coal,” and the written contract did not definitely determine which party should furnish them. The case of Crown Coal Co. v. Yoch Coal Co., 57 Ill. App. 666, involved this same question, and this court held, when the appellee sold the output of lump coal, agreeing to furnish not less than a certain number of cars of coal weekly at a certain price, between certain fixed dates, for which appellant agreed to pay at a certain fixed time, and the contract, like the one in this case, did not definitely determine which party should furnish the cars, but appellant furnished the cars for all the coal that was- delivered, it thereby placed a construction upon the contract to which it can not now object. It was further held, the amount of damages accruing because appellant did not furnish cars to be loaded and did not promptly take away cars that were loaded, was a question for the jury.
See, also, Parmalee v. Hamilton, 24 Ill. 605; Hall v. Nat. Bank, 133 Ill. 234; Leavers v. Cleary, 75 Ill. 349.
The evidence justified the finding that all the cars were furnished by appellant, and the acts of the parties and the express promise of appellant’s superintendent to furnish ears afforded evidence supporting the averment that by the construction put upon the contract by the parties thereto, appellant assumed the duty of furnishing the necessary cars on which to load all the coal to be supplied under the contract. Another point suggested is that the court erred in permitting the contract to be read to the jury, because it was not set out in the third amended declaration, except by the words, “ Here insert said contract as it appears in the original declaration filed in this cause,” and on this ground the judgment ought to have been arrested.
If the appellant deemed this mode of pleading defective, it should have filed a demurrer, but instead of so doing it pleaded set-off as before stated, claiming damages “ arising out of a violation of the same supposed contract in the plaintiff’s declaration mentioned.” The precise place for the insertion of the contract is indicated, and it was set up in haee verba in the declaration then filed in said cause. In Bourland v. Sickles, 26 Ill. 498, it was held that a party amending a pleading should indicate the precise part of it amended, and the place of its application; that the plaintiff should, by letters, figures or characters of some description, have indicated the precise place where it was designed to be inserted. See Wallace et al. v. Curtis, 36 Ill. 156, where objection was made to certain evidence which plaintiff was permitted to introduce, but the defendants put in issue that which was omitted in the- declaration, and it was held the plaintiff had the right to accept the issue, go to trial on it and introduce the evidence objected to.
The plea of set-off in the case at bar showed that defendant had notice of the contract for the breach of which plaintiffs claimed damages, and said plea put in issue said contract, and the admission of it in evidence was not error. Moline Plow Co. v. Anderson, 24 Ill. App. 366; Gerke v. Fancher, 57 Ill. App. 651.
In Kugen v. Kinnan, 123 Ill. 292, where a motion in arrest of judgment on account of a defect in the declaration was overruled, it was held the verdict cured the defect, and the rule was stated to be that where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal defect upon demurrer, yet if the issue joined be such as necessarily required on the trial, proof of the facts so imperfectly or defectively stated or omitted, and without which it is not to be presumed the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict. 1 Chitty’s Pl., 7th Am. Ed., 711, 712.
It is manifest that appellees were necessarily required to prove the contract omitted in the pleading before the judge would have directed the jury to give, or the jury would have given the verdict. Hence, under the issue joined, the motion in arrest would not lie upon the ground as claimed by appellant. We think also the proof showed a strike prevailed, and prevented appellees from getting out and delivering coal during the time as averred in said plea of set-off, and furnished a legal excuse under the terms of the contract and absolved them from liability for failure to deliver.
It is said lastly that no damages were legally recoverable, or if any were recoverable, the amount assessed was grossly excessive, and in making the estimate, counsel for appellant bases the profits on the lump coal at twenty-two cents per ton, and says Schneider, the only witness who testified on the question of damages, so testifies, as appears on page 38 of the record.
We have looked at his testimony on that page and find that he testified the profit on nut coal would have been 22 cents per ton, but on lump coal 36f- cents per ton.
The number of cars for lump coal which appellant failed and refused to furnish was 513, at 19£ tons each, making Í0,003£ tons at 36-f cents, $3,667.89, and the loss on 87 cars of nut coal, to be furnished by the appellees at $2.50 per car, $166.02. Making the total damages as shown by the evidence $3,834.51.
But the damages assessed were only $3,500, which was not an excessive assessment, if plaintiffs could legally recover for the loss of gains and profits that was occasioned by the failure of defendant to furnish the necessary cars Appellant contends, however, that the appellees could only legally recover as damages for failure to deliver cars, the difference between the market price of such coal so loaded and the contract price.
That the rule is the same as in a case between a vendor and vendee of merchantable articles. We do not so understand the rule applicable to the facts in this case. The contract was something more than for a mere purchase and sale.
It required said appellees to operate said mine in a good and workmanlike manner for eleven months, and by their work therein, produce the coal and pay rent for the use of the mine and machinery and royalty for said coal, and for the breach by appellant in failing to furnish cars, appellees are entitled to recover the amount of gains and profits which the evidence shows with sufficient certainty would have accrued to them if appellant had performed. They have the right to recover for gains prevented and losses sustained by the partial breach of the contract by appellant. 1 Sutherland on Damages, pp. 130-132; Atkinson v. Morse, 63 Mich. 276; Am. Digest, 1890, p. 1006; Id. 1892, p. 1375.
The evidence established, as already stated, the loss of profits to appellees by appellant’s breach was greater than the damages assessed; that appellees were ready, able and willing to furnish the coal to fill the cars which they requested appellant to procure and furnish and which it failed to furnish; and we see no good reason for reversing the judgment. Judgment is affirmed.