delivered the opinion of the court.
Treating the letter of appellee as insufficient to constitute an acceptance of all the terms of the proposal contained in appellant’s letter, and hence as not, when taken with appellant’s letter, making any contract, as the learned trial court evidently viewed it, we nevertheless regard the evidence as supporting the recovery. If the letter of appellee was in law a rejection of appellant’s proposal, by a different counter-proposal, yet the evidence shows beyond dispute that the appellant’s representatives accepted by parol this counter-proposal, and thereby a contract was made upon the terms contained in appellee’s letter. Anglo-American Co. v. Prentiss, 157 Ill. 506.
Appellant is clearly liable for the breach of this contract. The instruction given to the jury to the effect that in the lack of a tender of the purchase price of the iron, there could be no recovery, was erroneous. The statement of appellant’s representatives that it was unable to perform, relieved appellee from the necessity of a tender. The jury disregarded the instruction and found for the appellee. The fact that the verdict is thus contrary to the instruction of the court, while technically an error in law, is yet no ground for reversal when the verdict is right. It is error without prejudice to any right of appellant. Therefore the verdict should not be set aside upon this ground. C. & A. R. R. Co. v. Heinrich, 57 Ill. App. 399.
The amount of the recovery is warranted by the evidence. One hundred and fifty dollars thereof was properly allowable as loss of profit of $1 per ton of the amount of the iron contracted for, and the $750 paid by appellee in settlement of the claim of damages against him by his vendee was also properly allowed. The evidence as to this settlement was competent only as a matter of reduction of damages. It appears that if the difference between market and contract prices had been exacted, the damages for which appellee was liable to his vendee would have been larger in amount.
Nor was there any error in the measurement of the damages as by the market price in September, 1899. The contract between appellant and appellee was for delivery within thirty days after April 10, 1899. The performance by appellant was postponed from time to time by promises to deliver. ' These promises extended over the period from the time when delivery was due by the terms of the contract until the time of the settlement by appellee of the claim for damages against him and the bringing of this suit. At no time between May and September, 1899, was appellee bound, in disregard of these promises of a postponed performance, to go upon the market and by a purchase fix the amount of his loss and consequent damage. Summers v. Hibbard, 153 Ill. 102.
In that case the court said:
“ If delivery is postponed by agreement between the parties, the measure of damages is the difference between the contract price and the market price at the time the article is deliverable by the subsequent agreement; and where the time of delivery is postponed indefinitely, the measure of damages is the difference between the contract price and the market value at a reasonable time after demanding performance.”
¥e are of opinion that the declaration is sufficient, and we find nothing in other objections of counsellor appellant which constitutes ground for interfering with the judgment. The recovery is fully justified by the evidence, and the judgment will be affirmed.