*274opiwion.
Dinkolspiel, Judge.ffihe praotically indisputad faots of this case fnow that the evidence has head heard) are; That defendant Wm t formal contract with tho jock Board to do certain construction work, and an informal sub-oontraot with plaintiffs to furnish some of the materials ha needad; that the materials furnished by plaintiff was rejected by the Engineer of the Board, whose opinion was to be final as plaintiff had been Informed; that defendant had to obtain other material at a higher oost; and that plaintiffs material was then sold with thhir consent and for their account.
X.
Plaintiffs now sue for the value of their material, say ¿242.41, lass freight paid, say :j¡80.19; leaving a balance of ¿162.22 claimed in the petition. Against this claim defendant offsets his damages amounting to ¿157.77, being the amount paid for new material, say ¿226.77, lass proceeds of rejected material, say '169. Deducting the 1157.77 of damages, to which defendant is clearly entitled, from the $162.22 due plaintiff, leaves a balance of .¿4.45 in favor of plaintiff.
How this last amount is the moat to which plaintiffs could he entitled under the most favorable aspects of their claim. But the defendant set up in reoonvention a further claim of |Z00 (of v;hioh more hereafter), which the distriot judge allowed and thus gave a net judgment in fayor of defendant for $295.5b.
II.
Ihe re conventional demand for ¿¡¡000 arises out of the fact that defendant was charged with that amount as liquidated damages, being for twelve days delay at $25 *275per toy, as fixed in his oontraot with the board; which delay he attributes solely to the fault of plaintiffs.
As we said before, the oontraot between defendant and the board was a formal one, in whloh ¡iquiáated damages for delays ware stipulated; whilst the oontraot between defendant and plaintiffs was ##&### wholly informal; simply the purchase of an artiole whioh was to borne up to certain requirements.
Now there is no charge or pretense of bad faith on the part of plaintiffs; and the measure of damages for breach of oontraot without bad faith, is such damages as were oontemplated, or may reasonably be supposed to have been contemplated, at the time the oontraot was made; that is to say, suoh damages as were or might hare been foreseen. C. C. 1934 No. 1; 0. C. 1943.
But penalties, and stipulated or liquidated damages, are neoessarily special damages, since they may always be arbitrarily fixed; and henoe for defendant to recover these MiééM demurrage charges, it must be shown not only that plaintiffs were informed that defendant himself was under a general liability for demurrage charges, but also that plaintiffs were made aware that they in turn would be looked to for reimbursement in case of their own default. See 13 Ore pages 31 to 36, and especially Note 89- Also 17 Corpus Juris page 747 notes 1 and Z.
But there i3 no suoh evidence in this case. Defendant swears merely that he sent copies of the speofications to plaintiffs. Plaintiffs swear that the only copies of the specifications received byre extracts thereof relating to the stone material they were to furnish and not the full speeffioations containing the demurrage olauses; and they point out circumstances tending to corroborate their statement.
*276Suoh a oonfliot alona would auffioa to dispose of defendants olaim, since the burden was upon him to make his case certain. But indeed we find no oonfliot, sinoe defendant does not eren olaim to hare sent the full 3peoifioationa. Throughout his oorrespondsnoe and his testimony we find no suoh statement. On the contrary he testifies later that the oopies of specifications he sent, were the Yery extracts testified to hy plaintiffs, and adds hy way of explanation; "I was only interested in that portion of the contract relating to stone."
III.
We think plaintiffs olaim unfounded beyond the trifling sum of |4.45, as above stated; and henoe will charge them with the oosts incurred in the trial court, their olaim being virtually rejected. But as defendant’s reconventional demand is wholly untenable we will charge him with the oosts of this appeal made neoessary by his urging thereof (lot of 1910).
The judgment appealed from is therefore reversed, and it i3 now ordered that plaintiffs, Brantly !-. Boby, have judgment against defendant, William J. Comerford, for téjHHf Pour 45/100 BollarB with legal interest from judicial demand. Plaintiffs to pay the oosts of the court below, and defendant to pay the oosts of this appeal.