delivered the opinion of the court.
Appellant claims, first, that plaintiff did not make out his case by a preponderance of the evidence; second, that he failed to prove that he was able, ready and willing to receive and pay for the coal; third, that the court erred in the instruction for plaintiff as to the measure of damages; fourth, that the court erred in plaintiff’s instructions by not requiring that plaintiff prove his case by a preponderance of the evidence; and fifth, that there was error in refusing appellant’s seventh instruction as asked, and in giving it as modified.
The evidence was very conflicting, but from a careful examination of it, we can not say that the plaintiff failed to prove his case by the preponderance of the evidence. That was a question for the jury.
In order that plaintiff recover in this case, it was unnecessary for him to prove that he was able, ready and willing to receive and pay for the coal had it been shipped to him. The proof for appellant shows that it notified plaintiff, before the suit was commenced, that it could not fill plaintiff’s order. That proof relieved plaintiff from the necessity of any proof in this regard. Chicago House Wrecking Co. v. Rice Co., 67 Ill. App. 687; Wolf v. Willits, 35 Ill. 92.
The measure of damages laid down by the court in its instructions, was the difference between the contract price and the market price of the coal at the time and place when and where it should have been delivered under the contract. In this there was no error. The evidence showed the contract price and also the market price of the same coal at the time and place where it should have been delivered, and also, when all the evidence is considered, we think it clear that the contract was for delivery of the coal at Chicago, and not at the mines, as contended by appellant.
The general rule, no doubt is, that delivery of goods to a common carrier by the seller, is a delivery to the buyer, the consignee. 1 Beach’s Mod. Law on Conts., Sec. 563; 2 Kent’s Com., 494; 21 Amer. & Eng. Ency. of Law, 507; Wade v. Moffett, 21 Ill. 110; Hatch v. Oil Co., 100 U. S. 134.
Appellant concedes that the instruction of the court was correct as a proposition of law, but contends that the evidence shows the place of delivery was to be at the coal mines.
In Van Valkenburgh v. Gregg, 45 Neb. 655, it was held that where a contract designates a place of delivery, the contract prevails, and if none is provided, then it may be inferred from the circumstances of the case.
In Commercial Bank v. Ry. Co., 160 Ill. 406, the court say, in speaking of the duty of the common carrier and the effect of a time draft and bill of lading attached, “ Under the authorities we think it is plain that the drawee, by acceptanee of the draft, becomes entitled to the goods shipped, and to have the bill of lading surrendered or indorsed to him. The transfer of the bill of lading in such case operates to clothe the acceptor with evidence of title to the goods as the purchaser. ”
In Lewis v. Springville Bkg. Co., 166 Ill. 316, it was held that where a bill of lading to the consignee was delivered by the shipper to a bank as security for money advanced on his drafts, that fact would operate as a delivery of the consignment itself.
We are therefore of opinion that whether the coal was contracted to be delivered at Chicago or at the mines, was a question of intention of the parties, and it seems clear from the contract and the evidence, that the intention was to deliver it at Chicago. They did not intend the title should pass until the bill of lading was delivered at Chicago to appellee, the draft paid and the coal had arrived.
The instructions for both parties must be considered together as a whole, and as the instructions of appellant tell the jury that the appellee must prove his case by a preponderance of the evidence, that avoids any claim of error in that regard in the appellee’s instructions.
The court should have given appellant’s seventh instruction as asked. R. R. Co. v. Estep, 162 Ill. 130; R. R. Co. v. Nash, 166 Ill. 528.
It can not be said, as in these eases, that the substance of the instruction was given in the instruction as modified by the court. That could be said if the parties to the cause were both natural persons, or if the modified instruction had been applied to the witnesses generally. The only possible application this instruction could have in this case, would be to appellee, unless to appellant’s witness Coffey, who was not a party, nor, so far as the record shows, interested in the event of the suit. The modified instruction speaks of parties, their situation and interest in the result, and their testimony, and naturally, the jury would put the testimony of Coffey in these respects on the same basis as that of appellant. The instruction as modified was calculated to seriously prejudice appellant. Moreover, when the evidence is very conflicting, as in this case, the instructions should be accurate. Chicago City Ry. Co. v. Canevin, 12 Ill. App. 83, and cases cited.
The judgment will be reversed and the cause remanded.